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THE 


Constitution  of  the  United  States 


WITH 


notes  of  the  decisions  of  the  supreme  court 

Thereon,  from  the  Organization  of 

THE  Court  till  October,  1900. 


BY 

EDWIN  E.  BRYANT, 

Dean  of  the  Law  Faculty,   University  of  Wisconsin, 

XJNIVERSITT 

■SCCALIFO!^ 

madison,  wis.: 

The  Democrat  Printing  Company, 

1 901. 


^\ 


Copyright,  1901, 
By  EDWIN  E.  BRYANT. 


PREFACE. 


This  book  is  not  a  treatise.  It  merely  gives  the  text 
of  the  Constitution  of  the  United  States,  and  under 
each  article  and  clause  a  brief  statement  of  what  has 
been  decided  by  the  Supreme  Court  in  expounding  the 
same.  "No  attempt  is  made  at  analysis  of  the  Constitu- 
tion or  elaborate  classification  of  the  cases.  The  aim  is 
to  enable  the  student  readily  to  find  the  cases  in  which 
the  Court  has  interpreted  the  Constitution,  indicating 
concisely  the  points  decided  in  the  cases  cited. 

E.  E.  B. 

Madison,  March  4,  1901. 


87362 


TABLE  OF  CONTENTS. 


Page. 

Preamble.    Object  of  the  union 1 

Constitution  ordained  by  the  people 1 

Nature  of  the  union 6 

Its  relation  to  the  States 5 

ARTICLE  I. 

Section  1.  Legislative  power,  where  vested 8 

Section  2.  The  House  of  Representatives 8 

Who  may  be  Representatives 9 

Representatives,  how  apportioned,  chosen,  etc 9 

House  to  choose  Speaker  and  oflBcers 10 

Notes  of  decisions  as  to  direct  taxes,  etc 10 

Section  3.  The  Senate,  how  composed 13 

Senators,  how  chosen  and  classified;  vacancies,  how 
filled;  who  eligible;  Senate,  how  constituted;  Vice- 
President  to  preside 13 

Impeachment  of  President  or  officers 14 

Section  4.  Election  of  Senators    and  Representatives;  by 

States,  but  Congress  may  regulate 15 

Meeting  of  Congress 16 

Section  5.  Each  house  to  judge  of  election,  qualifications, 

etc.,  of  members 17 

And  determine  rules,  punish  and  expel  members 17 

Each,  to  keep  journal;  yeas  and  nays  to  be  entered; 

adjournments 19 

Section  6.  Compensation;  privilege  from  arrest;  disability 

to  hold  other  offices 19,  20,  21 


TABLE  OF  CONTENTS. 


Page. 

Preamble.    Object  of  the  union 1 

Constitution  ordained  by  the  people 1 

Nature  of  the  union 6 

Its  relation  to  the  States 5 

ARTICLE  I. 

Section  1.  Legislative  power,  where  vested 8 

Section  2.  The  House  of  Representatives 8 

Who  may  be  Representatives 9 

Representatives,  how  apportioned,  chosen,  etc 9 

House  to  choose  Speaker  and  officers 10 

Notes  of  decisions  as  to  direct  taxes,  etc 10 

Section  3.  The  Senate,  how  composed 13 

Senators,  how  chosen  and  classified;  vacancies,  how 
filled;  who  eligible;  Senate,  how  constituted;  Vice- 
President  to  preside 13 

Impeachment  of  President  or  officers 14 

Section  4.  Election  of  Senators    and  Representatives;  by 

States,  but  Congress  may  regulate 15 

Meeting  of  Congress 16 

Section  5.  Each  house  to  judge  of  election,  qualifications, 

etc.,  of  members 17 

And  determine  rules,  punish  and  expel  members 17 

Each,  to  keep  journal;  yeas  and  nays  to  be  entered; 

adjournments 19 

Section  6.  Compensation;  privilege  from  arrest;  disability 

to  hold  other  offices 19,  20,  21 


VI  TABLE   OF   CONTENTS. 

Page. 
Section  7.  Revenue  bills  to  originate  in  House  of  Repre- 
sentatives    21 

Approval  or  veto  of  bills 22 

Passage  of  same  over  veto 23 

*^  Section  8.  Powers  of  Congress 24 

To  lay  and  collect  taxes,  duties,  imposts  and  excises; 

same  to  be  uniform;  decisions 24 

To  borrow  money 34 

To  regulate  commerce 37 

To  establish  uniform  rule  of  naturalization 9S 

To  establish  uniform  bankruptcy  laws 100 

To  coin  money,  regulate  value,  etc  101 

To  fix  standard  of  weights  and  measures 101 

To  punish  counterfeiting 102 

To  establish  postoffices  and  post  roads 103 

To  authorize  patents  and  copyrights 107 

To  constitute  inferior  courts 110 

To  define  and  punish  piracy,  etc Ill 

To  declare  war,  grant  letters  of   marque,  and   make 

rules  as  to  captures 113 

To  raise  and  support  armies 118 

To  provide  and  maintain  a  navy 119 

To  make  rules,  etc.,  for  land  and  nava  1  forces 120 

To  provide  for  calling  out  the  militia 121 

•  And  organizing,  arming,  etc.,  the  same 124 

To  exercise  exclusive  legislation  over  seat  of  govern- 
ment —  District  of  Columbia 124 

To  make  all  laws  necessary  to  carry  powers  granted 

into  effect 128 

^/8ection  9.  The  slave  trade,  when  may  be  prohibited 132 

Habeas  corpus  not  to  be  suspended,  except,  when. .  133 

No  bill  of  attainder  or  ex  post  facto  law  to  be  passed  134 

Capitation  or  direct  taxes  to  be  laid  according  to  census  140 

No  tax  or  duty  to  be  laid  on  exports 141 

No  preference  of  ports  of  States;  vessels  to  enter  and 

clear  free 142 


TABLE  OF  CONTENTS.  Vll 

Page. 

Money  to  be  drawn  only  on  appropriation 143 

No  titles  of  nobility  permitted Hi 

No  titles,  presents  or  offices  to  be  accepted  from  for- 
eign States,  etc.,  without  consent  of  Congress 144 

^  Section  10.  States  prohibited  from  entering  into  treaties, 

alliances,  etc 144 

Granting  letters  of  marque,  coining  money,  making 
legal  tender,  etc.,  passing  bills  of  attainder,  ex  post 
facto  laws,  impairing  contracts  or  granting  letters 

of  nobility 144 

Decisions  on  section 144-200 

No  State  to  lay  tonnage  tax,  keep  troops  or  ships,  enter 
into  compact  with  other  States  or  foreign  powers,  or 

engage  in  war  unless,  etc 201 

ARTICLE  II. 

Section  1.  Executive  power  vested  in  President 206 

Electors  of  President,  how  appointed 206 

Electors  of  President,  when  appointed 209 

Electors  to  meet,  election,  how  held 207 

Who  eligible  as  President 211 

Devolution  of  office,  compensation,  oath 212 

Section  2.  Powers  of  President,  commander-in-chief 213 

Treaty-making,  diplomatic  and  official  appointments. .  217 

Filling  vacancies 219 

Section  3.  Duties  and  powers  as  to  Congress 220 

Section  4.  Removal  on  impeachment 221 

ARTICLE  III. 

^    Section  1.  Judicial  power,  how  vested 221 

In  Supreme  and  inferior  courts 221 

Section  2.  Extent  of  judicial  power 222 

Trial  of  crimes  to  be  by  jury;  place  of  trial 223 

Decisions  as  to  judicial  power,  etc 223 — 241 

Section  3.  Treason  defined  and  how  proved 241 


Vlll  TABLE  OF   CONTENTS. 


ARTICLE  IV. 

Page. 

Section  1.  Full  faith  and  credit  to  be  giveja  to  public  acts, 

records  and  judicial  proceedings  of  States 243 

Congress  to  provide  for  proving  same 243 

Decisions  as  to  same 243-252 

Section  2.  Privileges  and  immunities-  of  citizens  in  the  sev- 
eral States 252 

Decisions  as  to  same 252-260 

Fugitives  from  justice,  how  delivered  up 261 

Fugitive  slaves  to  be  delivered  up,  when 264 

Section  3.  New  States  may  be  admitted 266 

Congress  to  dispose  of  and  regulate  territories   and 

property 26& 

Decisions  as  to  same 269-27& 

Section  4.  Guaranty  to  States  of  republican  form  of  govern- 
ment       27^ 

Protect  them  against  invasion 279 

And  against  domestic  violence 279 


ARTICLE    V. 

X/onstitution,  how  amended , 


ARTICLE  VI. 

Debts  of  confederation  assumed 283 

Constitution,  laws  and  treaties  supreme 283 

Oath  to  support,  to  be  taken 283 

No  religious  test  required 283 


ARTICLE   VII. 

Eatification  of  Constitution 291 


TABLE  OF  CONTENTS.  IX 


AMENDMENTS. 

Page. 
Article  I.    Freedom  of  religion,  speech  and  press;  right 

of  petition  and  to  assemble    292 

Article  II.    Right  to  keep  and  bear  arms 295 

Article  III.    No  quartering  of  soldiers  in  time  of  peace 

without  consent  of  owner  of  house 296 

Article  IV.    Security  against  unreasonable  searches  and 

seizures;  warrants  to  issue  only  on  oath,  etc 297 

^Article  V.  Safeguards  to  accused;  to  be  charged  for 
infamous  crimes  only  in  indictment;  not  to  be  put 
twice  in  jeopardy;  nor  compelled  to  be  witness 
against  self;  nor  deprived  of  life,  liberty  or  property 

without  due  process  of  law  299 

Private  property  not  to  be  taken  for  public  use  without 

.  compensation 299 

y  Article  VI.  Right  to  trial  by  jury;  to  be  informed  of  ac- 
cusation; confront  witnesses;  have  process  for  their 

attendance  and  aid  of  counsel 310 

Article  VII.     Trial  by  jury  in  cases  at  common  law 312 

Verdict,  when  conclusive 312 

Article  VIII.    Excessive  bail  or  fines,  and  cruel,  unusual 

punishments  prohibited 346 

Article  IX.    Rights  enumerated  not  construed  as  denial, 

etc.,  of  others  retained  by  people 347 

i     Article  X.     Powers  not  delegated,  reserved  to  States  and 

people 318 

Article  XI.    Judicial  power  not  to  extend  to  suits  against 
State  by  citizens  of  another,  or  citizens  or  subjects 

of  a  foreign  State 321 

Article  XII.     Amending  clause   as  to  election  of  Presi- 
dent, etc 207 

Article  XIII.    Slavery  prohibited 327 

Decisions  as  to 327-330 


X  TABLE    OF   COI^TENTS. 

Page. 
^  Article  XIV.    Section  1.  Citizenship  and  civil  rights....       330 
Section  1.  Who  are  citizens;  no  State  to  abridge  privileges 
and  immunities;  nordepriveof  life,  liberty  or  property 
without  due  process  of  law,  nor  deny  to  any  person 

the  equal  protection  of  the  laws 330 

Section  2.  Representation,  how  apportioned;  when  to  be 

reduced 331 

Section  3.  Disabilities  for  participation  in  rebellion;  how 

to  be  removed 331 

Section  4.  Validity  of  public  debt  not  to  be  questioned., .       332 
Confederate  debts  not  to  be  assumed  by  nation  or  State      332 

Section  5.  Power  of  Congress  to  enforce  Article 332 

Decisions  as  to  this  article 333-382 

Article  XV.    Right  of  suffrage 383 

Section  1.  Right  to  vote  not  to  be  denied  or  abridged 

for  color,  race,  etc 383 

Section  2.  Congress  empowered  to  enforce  Article 383 

Decisions  under 383-386 

Addendum — Jurisdiction  of  Supreme  Court  over  writ  of 

habeas  corpus 387 

Index 393 


TABLE  OF  CASES. 


Abbott  V.  Bank,  175  U.  S.,  409 367 

Ableman  v.  Booth,  21  How.,  506 235,  265,  319 

Achison  v.  Huddleson,  12  How.,  292 151 

Atchison,  etc.,  R.  Co.  v.  Matthews,  174  U.  S.,  96 372 

Adams  Express  Co.  v.  Ohio  State  Auditor,  165  U.  S.,  194. . .     53 

Addyston  Pipe,  etc.,  Co.  v.  United  States,  175  U.  S.,  211 84 

Adirondack  R.  Co.  v.  New  York,  176  U.  S.,  335 192 

Aldrich  v.  Ins.  Co.,  8  Wall.,  491 23& 

Allen  V.  Georgia,  166  U.  S.,  138 37L 

Allen  V.  McVeigh,  107  U.  S.,  433 240' 

Allgeyer  v.  Louisiana,  165  U.  S.,  578 363 

Almy  V.  California,  24  How.,  169 200 

Am.  Ins.  Co.  v.  Canter,  1  Pet,  511,  542 241,  269 

Am.  Pub.  Co.  V.  Pisher,  166  U.  S.,  464 277,  315 

Am.  Sugar  Ref.  Co.  v.  Louisiana  (1900) 390 

Amy  V.  Shelby  Co.  Taxing  District,  114  U.  S.,  387 184, 185 

Anderson  v.  Dunn,  6  Wheat,  204 17 

Anderson  v.  United  States,  171  U.  S.,  604 84 

Andrews  v.  Swartz,  156  U.  S.,  272 371 

Antoni  v.  Greenhow,  107  U.  S.,  769 164 

Armstrong  v.  Foundry,  6  Wall.,  766 217 

Armstrong  v.  Treasurer  of  Athens  Co.,  16  Pet,  281 176,238 

Armstrong  v.  United  States,  13  Wall.,  154 216 

Arrowsmith  v.  Harmoning,  118  U.  S.,  194 364,  366 

Asher  v.  Texas,  128  U.  S.,  129 45 

Ashley  v.  Ryan,  153  U.  S.,  436 72 


Xii  TABLE    OF    CASES. 

Aspinwall  v.  Comm'rs,  22  How.,  377 153, 180 

Austin  V.  Tennessee  (1900) 391 

Ayres,  In  re,  123  U.  S.,  143 230 

B. 

Backus  V.  Depot  Co.,  169  U.  S.,  557,  556 374 

Bain,  ex  parte,  121  U.  S.,  1 300 

Baiz,  I/^re,  135  U.  S.,  403 226 

Baker's  Ex'rs  v.  Kilgore,  145  U.  S.,  487 191 

Baldwin  v.  Hale,  1  Wall.,  223 101, 195 

Baltimore  &  Ohio  R.  R.  Co.  v.  Maryland,  21  Wall.,  456 55,  65 

Baltimore  &  Ohio  R.  R.  Co.  v.  Nesbit,  10  How.,  395 178 

Baltzer  v.  North  Carolina,  161  U.  S.,  240 187, 196 

Bank  v.  Erie,  13  Pet,  579 74 

Bank  v.  McVeigh,  98  U.  S.,  332 240 

"'Bank  Tax  Case,"  2  Wall.,  200 28 

Bank  of  Alabama  v.  Walton,  9  How.,  522 248 

Bank  of  Alexandria  v.  Dyer,  14  Pet.,  141 126 

Bank  of  Augusta  v.  Earle,  13  Pet,  519 260 

Bank  of  Columbia  v.  Oakley,  4  Wheat.,  235 313 

Bank  v.  Commonwealth,  9  Wall.,  353 129 

Bank  of  Kentucky  v.  Wister,  2  Pet.,  318 229 

Bank  of  Redemption  v.  Boston,  125  U.  S.,  60 358 

Bank  of  United  States  v.  Plumbers'  Bank  of  Georgia,  9 

Wheat,  904 229 

Bank  of  United  States  v.  Deveaux,  5  Cranch,  61,  86 260 

Banks  v.  The  Mayor,  7  Wall.,  16 27,36 

Banks  v.  Supervisors,  7  Wall.,  27 36 

Barbier  v.  Connolly,  113  U.  S.,  27 342 

Barings  v.  Dabney,  19  Wall.,  1 158 

Barnitz  v.  Beverly,  163  U.  S.,  118 159 

Barron  v.  Baltimore,  7  Pet,  243 4,  292,  306,  307,  308 

Barron  v.  Burnside,  121  U.  S.,  186 224 

Bartemeyer  v.  Iowa,  18  Wall.,  129 67,  69,  258 


TABLE     OF     CASES.  XIU 

Bauman  v.  Ross,  167  U.  S.,  548 381 

Beer  Co.  v.  Massachusetts,  97  U.  S.,  25 69 

Beers  v.  Arkansas,  20  How.,  527 ,. 179 

Beers  v.  Haughton,  9  Pet.,  329 174 

Belfast,  The,  7  Wall.,  624 90 

Belknap  v.  Schild,  161  U.  S.,  10 ' 108 

Bell  V.  Hearne,  19  How.,  252 239 

Bellingham  Bay,  etc.,  Co.  v.  New  Whatcom,  172  U.  S.,  320. .  380 

Bell's  Gap  R'y  Co.  v.  Pennsylvania,  134  U.  S.,  232 358 

Benner  v.  Porter,  9  How.,  235 241,  268 

Bergemann  v.  Backer,  157  U.  S.,  655 371 

Bertgold  v.  McDonald,  22  How.,  334. 239 

Bier  v.  McGehee,  148  U.  S.,  137 170 

Binghamton  Bridge,  3  Wall.,  51 151, 152 

Blake  v.  McClung,  172  U.  S.,  248 .252,  254,  255,  338 

Blake  v.  United  States,  103  U.  S.,  227 214 

Bloomer  v.  Stolley,  5  McLean,  156 107 

Blouchard's  Factory  v.  Warner,  1  Blatch.,  258 107 

Board  of  Liquidation  v.  McComb,  92  U.  S.,  531 325 

Boggs  V.  Mining  Co.,  3  W^all.,  304 236 

Bohannan  v.  Nebraska,  125  U.  S.,  692 235 

Bollman,  ex  parte,  4  Cranch,  75 241,  287 

Bonaparte  v.  Tax  Court,  104  U.  S.,  592.. 249 

Bors  V.  Preston,  111  U.  S.,  260 225 

Botiller  v.  Dominguez,  130  U.  S.,  238 286,  287 

Bowman  v.  Chicago,  125  U.  S.,  506 41,  49 

Boyd  V.  Nebraska,  143  U.  S.,  135 99,  267,  281 

Boyd  V.  United  States,  116  U.  S.,  616 297 

Boyd  V.  United  States,  116  U.  S.,  634 300,  305  ' 

Bradfield  v.  Roberts,  175  U.  S.,  291 295 

Bradley  v.  People,  4  Wall.,  459 36 

Bradwell  v.  The  State,  16  Wall.,  130 258 

Brass  v.  Stroeser,  153  U.  S.,  391 73,  350 

Brennan  v.  Titusville,  153  U.  S.,  289 46 

Brimmer  v.  Rebman,  138  U.  S.,  78 79 


XIV  TABLE    OF    CASES. 

Bridge  Proprietors  v.  Hoboken  Co.,  1  Wall.,  116 181 

Briscoe  v.  Bank  of  Kentucky,  11  Pet,  324 229 

Bristol  V.  Washington  Co.,  177  U.  S.,  133 380 

Boom  Co.  V.  Boom  Co.,  110  U.  S.,  57 ^38 

Bronson  v.  Kinzie,  1  How.,  311 154, 117 

Brown  v.  Duchesne,  19  How.,  183 108 

Brown's  Case,  135  U.  S.,  662 168 

Brown  v.  Colorado,  106  U.  S.,  95 '. 238 

Brown  v.  Houston,  114  U.  S.,  622 64, 197,  258 

Brown  v.  Maryland,  12  Wheat.,  419 48, 197 

Brown  v.  New  Jersey,  175  U.  S.,  172 365,  367 

Brown  v.  United  States,  8  Cranch,  110 114 

Brown  v.  Walker,  161  U.  S.,  591 304 

Bryan  v.  Board  of  Education,  151  U.  S.,  639 186 

Byrne  v.  State  of  Missouri,  8  Pet,  40 144 

Budd  V.  New  York,  143  U.  S.,  517 55,  72,  350 

Burford's  Case,  3  Cranch,  348 387 

Burgess  v.  Salmon,  97  U.  S.,  381 139, 147 

Burrows-Giles  Lithographic  Co.  v.  Sarony,  111  U.  S.,  53...   108 

Butler  V.  Gorely,  146  U.  S.,  303 101 

Butler  V.  Pennsylvania,  10  How.,  402 178 

Butterworth  v.  Hoe,  112  U.  S.,  59 109 

Butz  V.  City  of  Muscatine,  8  Wall.,  575 157 

C. 

Cairo,  etc.,  R.  Co.  v.  Hecht,  95  U.  S.,  168 171 

Caldwell  v.  Texas,  137  U.  S.,  692 370 

•Calder  v.  Bull,  3  Ball.   (U.  S.),  386 136 

California  v.  Railroad  Co.,  127  U.  S.,  1 32 

Callan  v.  Wilson,  127  U.  S.,  540 277 

Camfield  v.  United  States,  167  U.  S.,  578 131 

Cammeyer  v.  Newton,  94  U.  S.,  225 108 

Campbell  v.  HoU,  115  U.  S.,  620 373 

Campbell  v.  Wade,  132  U.  S.,  34. 186 


TABLE     OF     CASES.  XV 

Cannon  v.  New  Orleans,  20  Wall.,  577 202 

Cannon  v.  United  States,  116  U.  S.,  55 294 

Cardwell  v.  Am.  Bridge  Co.,  113  U.  S.,  205 50,  94,  268 

Carlisle  v.  United  States,  16  Wall.,  147 216,  243 

Carney  v.  Iowa,  5  Wall.,  480 69 

Carpenter  v.  Pennsylvania,  17  How.,  456 136 

Carpenter  v.  Strange,  141  U.  S.,  87 250 

Carter  v.  Texas,  177  U.  S.,  442 330,  337 

Catlett  V.  Morton,  4  Lit.  (Ky.),  122 20 

Cent.  Loan  &  Trust  Co.  v.  Campbell  Com.  Co.,  173  U.  S.,  84. .   372 

Chae  Chan  Ping  v.  United  States,  130  U.  S.,  581 99 

Chapman,  In  re,  166  U.  S.,  661 18 

Charleston  v.  Branch,  15  Wall.,  470 150 

Charles  Riv.  Bridge  v.  Warren  Bridge,  11  Pet.,  420.  .152, 153, 176 

Charlotte,  etc.,  Co.  v.  Gibbes,  142  U.  S.,  386 340 

Chase  v.  Curtis,  113  U.  S.,  452 251 

Chemung  Canal  Co.  v.  Lowery,  93  U.  S.,  72 259 

Chenango,  etc.,  Co.  v.  Binghamton  Bridge  Co.,  3  Wall.,  51. .   156 

Cherokee  Nation  v.  Georgia,  5  Pet,  15 228,  230 

Cherokee  Nation  v.  So.  Kans.  Ry.,  135  U.  S.,  641 43,  97 

C,  M.  &  St.  Paul  R'y  Co.  v.  Ackley,  94  U.  S.,  179 353 

Chic,  B.  &  Q.  R'y  Co.  v.  Chicago,  166  U.  S.,  226 

292,  314,  315,  363,  365 

C,  B.  &  Q.  R.  R.  Co.  V.  Iowa,  94  U.  S.,  164 183,  352 

Chicago,  etc.,  Ry.  Co.  v.  Minnesota,  134  U.  S.,  418 55 

Chic,  B.  &  Q.  R'y  Co.  v.  Nebraska,  170  U.  S.,  57 363 

Chicago,  etc.,  R'y  Co.  v.  Pontius,  157  U.  S.,  209 346 

Chic,  etc,  R'y  Co.  v.  Wiggins,  119  U.  S.,  615 246,  250 

Chic,  etc,  R'y  Co.  v.  Sturm,  174  U.  S.,  710. 251 

Chicago  V.  Sheldon,  9  Wall.,  50 170 

Chisholm  v.  Georgia,  2  Dall.,  419 224,  227,  230 

Chinese  Exclusion  Cases,  130  U.  S.,  581 6, 132,  286 

Chirac  v.  Chirac,  2  Wheat.,  259 290 

Church  V.  Kelsey,  121  U.  S.,  282 171,  366 

Christmas  v.  Russell,  5  Wall.,  290 246,  247 


XVL  TABLE    OF    CASES. 

Chy  Lung  v.  Freeman,  92  U.  S.,  275 77 

Citizens'  Bank  of  Owensboro,  173  U.  S.,  651. . .  .150, 160, 192,  341 

Civil  Rights  Cases,  109  U.  S.,  3 327,  334 

Claflin  V.  Houseman,  93  U.  S.,  130 320 

Clay  V.  Smith,  3  Pet.,  411. 196 

Cleveland,  etc.,  Ry.  Co.  v.  Illinois,  177  U.  S.,  514 73 

Clinton  Bridge,  The,  10  Wall.,  454 93 

Clinton  v.  Englebrecht,  13  Wall.,  434 241,  276 

Coe  v.  Errol,  116  U.  S.,  517 142,  200 

CofEey  v.  United  States,  116  U.  S.,  436 300 

Cohens  v.  Virginia,  6  Wheat,  264 5, 126,  224,  227,  230 

Cole  V.  Cunningham,  133  U.  S.,  107 • 249 

Cole  V.  La  Grange,  113  U.  S.,  1 308 

Coleman  v.  Tennessee,  97  U.  S.,  509 115 

Collector  v.  Day,  11  Wall.,  113 5,  32,  319 

Collins  V.  New  Hampshire,  171  U.  S.,  30 82 

Confiscation  Cases,  20  Wall.,  92 216 

Connor  v.  Elliott,  18  How.,  591 252,  258 

Cook  v.  Hart,  146  U.  S.,  183,  190,  192 259 

Cook  v.  Pennsylvania,  97  U.  S.,  571 41,  44,  49, 197 

Cook  v.  Moffatt,  5  How.,  205 100, 195,  284 

Cook  V.  Unites  States,  138  U.  S.,  157 139 

Cooley  V.  Wardins  Port  of  Phila.,  12  How.,  299 34,  39,  50,  71 

Cooper,  ex  parte,  143  U.  S.,  472 267,  285 

Cooper  Mfg.  Co.  v.  Ferguson,  113  U.  S.,  727 74 

Cooper  V.  Telfair,  4  Dall.,  14 135 

Converse,  In  re,  137  U.  S.,  624 369 

Conway  v.  Taylor's  Ex'r,  1  Black.,  603 95,  96 

Corsen  v.  Maryland,  120  U.  S.,  502 45 

Counselman  v.  Hitchcock,  142  U.  S.,  648 305 

Coupon  Cases,  114  U.  S.,  269 325 

Covington  &  Cincinnati  Bridge  Co.  v.  Kentucky,  154  U.  S., 

204 95 

Coxe  V.  McClenechan,  3  Dall.,  478 21 

Craig  V.  Missouri,  4  Pet,  410 144 


TABLE    OF    CASES.  XVll 

Craighead  v.  Wilson,  18  How.,  201 236 

Crandall  v.  Nevada,  6  Wall.,  40 41,  57, 115, 159, 199,  256 

Crawford  v.  Branch  Bank  of  Mobile,  7  How.,  279 177 

Crawley  v.  Christenson,  137  U.  S.,  86 68,  69 

Cross  V.  Harrison,  16  How.,  193  . , 210,  278 

Cross  V.  North  Carolina,  132  U.  S.,  132 309 

Crowell  V.  Randell,  10  Pet,  368 238 

Crutcher  v.  Kentucky,  141  U.  S.,  47 46 

Cumming  v.  Richmond  Co.  Board  of  Education,  175  U.  S. 

528 337 

Cummings  v.  Missouri,  4  Wall.,  277  136, 146 

Cunningham  v.  R.  R.  Co.,  109  U.  S.,  452 325 

Curran  v.  Arkansas,  15  How.,  304 155,  229,  230,  323 

Curtis,  ex  parte,  106  U.  S.,  371 130 

Curtis  V.  Whitney,  13  Wall.,  68  182 

Cuthbert  v.  Virginia,  135  U.  S.,  662 168 

D. 

D'Arcy  v.  Ketchum,  11  How.,  165 243,  244 

Daggs  V.  Orient  Ins.  Co.,  172  U.  S.,  557 78 

Dainese  v.  Kendall,  119  U.  S.,  53 236 

Daniel  Ball,  The,  10  Wall.,  557  52,  87 

Danton  v.  Halstead,  2  Clark  (Pa.) ,  450 20 

Darby's  Lessee  v.  Mayer,  10  Wheat.,  465 247 

Darrington  v.  State  Bank  of  Alabama,  13  How.,  12 

•• 145,229,230 

Dartmouth  College  v.  Woodward,  4  Wheat,  518 147, 153, 192 

Davenport  Bank  v.  Davenport,  123  U.  S.,  83 258 

Davies  v.  Beason,  133  U.  S.,  333 294 

Davis  V.  Gray,  16  Wall.,  203 143, 151, 170,  229,  330,  323 

Davis  V.  Massachusetts,  167  U.  S.,  43 351 

Davis  V.  Texas,  139  U.  S.,  651 292 

Dawson  v.  Godfrey,  4  Cranch,  321 211 

De  Geofrey  v.  Riggs,  133  U.  S.,  258 287,  289 


XVlll  TABLE     OF     CASES. 

Debs,  In  re,  158  U.  S.,  564 86 

Denny  v.  Bennett,  128  U.  S.,  495 150, 169, 195 

Dent  V.  West  Virginia,  129  U.  S.,  114 843 

Delaware  v.  R.  R.  Tax  Case,  18  Wall.,  206 76, 188 

Delmas  v.  Merchants'  Mut.  Ins.  Co.,  14  Wall.,  661 170 

Dewey  v.  Des  Moines,  173  U.  S.,  193 362 

Dewhurst  v.  Coulthard,  3  Dall.  (U.  S.) ,  409 Ill 

District  of  Columbia  v.  B.  &  P.  R.  R.  Co.,  114  U.  S.,  453. .. .  127 

Dobbins  v.  Erie  Co.,  16  Pet.,  435  29 

Dodge  V.  Woolsey,  18  How.,  331    149,151,179 

Dooley  v.  Smith,  13  Wall.,  604 102 

Doty  V.  Strong,  1  Pin.  Wis.,  84  20 

Dow  V.  Beidelman,  125  U.  S.,  680    340,353 

Dower  v.  Richards,  151  U.  S.,  658,  666 241 

Downham  v.  Alexandria,  10  Wall.,  173 67,  69,  254 

Doyle  V.  Ins.  Co.,  94  U.  S.,  535  74,  78,  224 

Dred  Scott  Case,  19  How.,  411   132,253,256,265,268,273 

Drehman  v.  Stifle,  8  Wall.,  595 137 

Ducat  V.  Chicago,  10  Wall.,  410   14,  260 

Dugan  V.  United  States,  3  Wheat,  173,  179,  180 132 

Duluth,  etc.,  R.  Co.  v.  St.  Louis  Co.  (1900) 389 

Duncan  v.  Missouri,  512  U.  S.,  377  138,  364 

Durkee  v.  Board  of  Liquidation,  103  U.  S.,  646 Ill,  154 

Dynes  v.  Hoover,  20  How.,  65   120,  301 

E. 

East  Hartford  v.  Bridge  Co.,  10  How.,  536 152, 163 

Edwards  v.  Elliott,  21  Wall.,  532 90,  292 

Edwards  v.  Kearzey,  96  U.  S.,  595   171, 195 

Edye  v.  Robertson,  112  U.  S.,  580 286 

Effinger  v.  Kenney,  115  U.  S.,  566 159 

Eilenbecker  v.  Dist.  Court,  134  U.  S.,  31 292 

Eilenbecker  v.  Plymouth  Co.,  134  U.  S.,  31 366 

Eldridge  v.  Trezevant,  160  U.  S.,  462  259,  375 


TABLE     OF     CASES.  XIX 

Elk  V.  Wilkins,  112  U.  S.,  94 332 

Ellett  V.  Virginia,  135  U.  S.,  662 " 168 

Emert  v.  Missouri,  156  U.  S.,  296  157, 188 

Erb  V.  Merash,  177  U.  S.,  584  74 

Erie  Ry.  Co.  v.  Pennsylvania,  21  Wall.,  498  157, 188 

Escanaba  Co.  v.  Chicago,  107  L.  S.,  678   94,  267 

Eustis  V.  Bolles,  150  U.  S.,  361 173,  241 

Evans  v.  Eaton,  Pet.  C.  C,  322 107 

Ex  parte  Bain,  121  U.  S.,  1 300 

Bollman,  4  Cranch,  75 242,  387 

Cooper,  143  U.  S.,  472,  501 267,  285 

Curtis,  106  U.  S.,  371 130 

Fisk,  113  U.  S.,  713 388 

Fonda,  117  U.  S.,  516 389 

Garland,  4  Wall.,  333 136 

Hung  Hang,  108  U.  S.,  522 387 

Kearney,  7  Wheat,  38 311 

Jackson,  96  U.  S.,  727 105,  298 

Lange,  18  How.,  163   309,  387,  388 

Milligan,  4  Wall.,  1 114, 133, 134,  237,  266,  301 

John  Merryman,  Taney,  246  133 

Parks,  93  U.  S.,  18 387 

Rapier,  143  U.  S.,  110 106 

Reggel,  114  U.  S.,  261 298,  365 

Reed,  100  U.  S.,  13 120 

Rowland,  104  U.  S.,  604  388 

Terry,  128  U.  S.,  289 366 

Siebold,  100  U.  S.,  371,  390   ; 309,  371 

Yallandingham,  1  Wall.,  242 134 

Wilson,  114  U.  S.,  415 300 

Yarbrough,  110  U.  S.,  651 385,  386 

Yerger,  8  Wall.,  85 134,  388 

Virginia,  100  U.  S.,  330    328,329 


XX  TABLE    OF    CASES. 


F.  May  &  Co.  > .  New  Orleans,  178  U.  S.,  496 49,  50 

Fallbrook  Irrigation  Dist.  v.  Bradley,  164  U.  S.,  158,  175, 

176 .350,  35& 

Fanning  &  Gregoire,  16  How.,  524 96 

Fargo  V.  Michigan,  121  U.  S.,  230 41,  56,  59,  66 

Farmers',  etc..  Bank  v.  Smith,  6  Wheat,  131 194 

Farrington  v.  Tennessee,  95  U.  S.,  679 149, 151 

Fellows  V.  Blacksmith,  19  How.,  366 28» 

Ferry  Co.  v.  Pennsylvania,  114  U.  S.,  196 50 

Fertilizing  Co.  v.  Hyde  Park,  97  U.  S.,  659 153 

Ficklin  v.  Shelby  Co.  Taxing  Dist,  145  U.  S.,  1 47 

Fielden  v.  Illinois,  143  U.  S.,  452 371 

Fish  V.  Jefferson  Police  Jury,  116  U.  S.,  131 174 

Fisk,  ex  'parte,  113  U.  S.,  713 388 

Fisk  V.  Police  Jury,  116  U.  S.,  131 170 

Fitts  V.  McGhee,  172  U.  S.,  516  325 

Fletcher  v.  Peck,  6  Cranch,  87   135, 136, 154 

Florida  v.  Anderson,  91  U.  S.,  667 229 

Florida  v.  Georgia,  17  How.,  478  231 

Fonda,  ex  parte,  117  U.  S.,  516 389 

Fong  Yon  Tung  v.  United  States,  130  U.  S.,  228 99,287,350 

Forgay  v.  Contad,  6  How.,  201 2^6 

Forsythe  v.  United  States,  9  How.,  571 241 

Fort  Leavenworth  R.  R.  Co.  v.  Lowe,  114  U.  S.,  525 127 

Foster  v.  Com'rs,  etv-.,  of  Mobile,  22  How.,  244 284 

Foster  v.  Kansas,  112  U.  S.,  205  69,  281 

Foster  v.  Neilson,  2  Pet,  253  218,  288 

Foster  v.  Master,  etc.,  Port  of  New  Orleans,  94  U.  S.,  246. . .     48 

Fowler  v.  Lindsay,  3  Dall.,  411  228 

Fox  V.  State  of  Ohio,  5  "How.,  433 103,  292,  309,  320 

Franklin  Bk.  v.  Ohio,  1  Black,  474 149, 151 

French  v.  Hopkins,  124  U.  S.,  524 235 

Freeland  v.  Williams,  131  U.  S.,  405 186, 192,  303,  368 


TABLE    OF    CASES.  XXI 

Fullerton  v.  Bank  U.  S.,  1  Pet.,  604 171 

Furman  v.  Nichol,  8  Wall.,  44 149 

G. 

Galena  v.  Amy,  5  Wall.,  705  172 

Galpin  v.  Page,  18  Wall.,  350 .244,  245 

Garland,  Ex  parte,  4  W^all.,  333 21S 

Gardner  v.  The  Collector,  6  Wall,  499  23 

Gassies  v.  Ballon,  6  Pet.,  761 260 

Gerr  v.  Connecticut,  161  U.  S.,  533 78 

Gelpcke  v.  Dubuque,  1  Wall.,  175 160, 170 

General  Scott,  The,  4  Wheat,  438 90 

Gentry  v.  Griffith,  27  Tex.,  461 20 

Genesee  Chief  v.  Fitzhugh,  12  How.,  443 91 

Georgetown  v.  Alexandria  Canal  Co.,  12  Pet.,  91 126 

Georgia  v.  Brailsford,  3  Dall.,  1 228,  230 

Georgia  v.  Madrazo,  1  Pet,  110 230 

Georgia,  etc.,  Co.  v.  Smith,  128  U.  S.,  174 153 

Georgia  V.  Stanton,  6  Wall,  50 223 

Gibbons  v.  Ogden,  9  Wheat,  1 38,  39,  40,  86, 199,  287 

Gibson  v.  Mississippi,  162  U.  S.,  565 138,  285,  330 

Gilman  v.  Lockwood,  4  Wall.,  409 101, 196 

Gilman  v.  Philadelphia,  3  Wall.,  713 39,  86,  93,  94 

Gilman  v.  Sheboygan,  2  Black.,  510 180 

Giozza  V.  Tiernan,  148  U.  S.,  657 67,  69,  364 

Githings  v.  Crawford,  Taney,  9 225 

Gladson  v.  Minnesota,  166  U.  S.,  427 73 

Glenn  v.  Garth,  147  U.  S.,  360 249 

Gloucester  Ferry  Co.  v.  Penn.,  114  U.  S.,  196 39,  95 

Goldey  v.  Morning  News,  156  U.  S.,  518 244 

Good  V.  Martin,  95  U.  S.,  90 241 

Gordon  v.  Appeal  Tax  Court,  3  How.,  133 148, 151, 189 

Governor  of  Georgia  v.  Madrazzo,  1  Pet,  110 228 

Grand  Lodge  v.  New  Orleans,  166  U.  S.,  146 151, 187 


XXll  TABLE    OF    CASES. 

Gratiot  v.  United  States,  4  How.,  80 120 

Gray  v.  Connecticut,  159  U.  S.,  74  67 

Grapeshot,  Tlie,  9  Wall,  129  210 

Grayson  v.  Virginia,  3  Ball.,  320 227 

Great  West.  Tel.  Co.  v.  Purdy,  162  U.  S.,  329 248 

Green  Bay,  etc.,  Co.  v.  Kaukauna,  etc.,  Co.,  142  U.  S.,  254. . .   378 

Green  Bay,  etc.,  Co.  v.  Patten  Paper  Co.,  172  U.  S.,  58 379 

Green,  7n  re,  134  U.  S.,  377 9,  207 

Green  v.  Biddle,  8  Wheat,  1  153,  203 

Green  v.  Van  Buskirk,  7  Wall.,  139  249 

Greenwood  v.  Freight  Co.,  105  U.  S.,  22 153 

Gregory  v.  McVeigh,  23  Wall.,  306  237 

Grover,  etc.,  Mch.  Co.  v.  Radcliffe,  137  U.  S.,  287 246 

Gulf,  etc.,  Ry.  Co.  v.  Hefley,  158  U.  S.,  98 59,  283 

Gunn  V.  Barry,  15  Wall.,  610 ; 157, 170 

Gundling  v.  Chicago,  177  U.  S.,  183  351 

Gut  V.  The  State,  9  Wall.,  35 146 

H. 

Hagner  v.  Kurtz,  94  U.  S.,  773 98 

Hagood  V.  Southern,  117  U.  S.,  52 324 

Hagar  v.  Reclamation  Dist,  111  U.  S.,  701 361,  362,  381 

Hall  V.  De  Cuir,  95  U.  S.,  516 41,  51 

Hall  V.  Jordan,  15  Wall.,  393  235 

Hall  V.  Lanning,  91  U.  S.,  160  243,  245 

Hall  V.  Wisconsin,  103  U.  S.,  5 178 

Hamilton  v.  Brown,  161  U.  S.,  256 373 

Hamilton  v.  Dillon,  21  Wall.,  73 114, 116, 130,  214 

Hamilton  v.  Vicksburg,  etc.,  Co.,  119  U.  S.,  280 94,  267 

Hampton  v.  McConnell,  3  Wheat.,  234 248 

Hancock  Nat.  Bk.  v.  Farnum,  176  U.  S.,  640 252 

Hanley  v.  Donoghue,  116  U.  S.,  1  244,  248 

Hans  V.  Louisiana,  134  U.  S.,  11 185,  230,  322,  323 

Hart  V.  Lampshire,  3  Pet,  280 240 


TABLE     OF    CASES.  XXlll 

Hart  V.  Lampshire,  5  Pet.,  457 193 

Hartman  v.  Greenhow,  102  U.  S.,  672 163 

Hauenstein  v.  Lynham,  100  U.  S.,  483 287,  290 

Havemeyer  v.  Iowa  County,  3  Wall.,  294 170 

Hawker  v.  New  York,  170  U.  S.,  201 137, 184 

Hawkins  v.  Barney,  5  Pet,  457 193 

Hawthorne  v.  Calef,  2  Wall.,  10 156 

Hayes  v.  Missouri,  120  U.  S.,  68 370,  374 

Hayburn's  Case,  2  Dall.,  409 8 

Head  Money  Cases,  112  U.  S.,  580 43 

Henderson  Bridge  Co.  v.  Henderson,  173  U.  S.,  592,  624 355 

Henderson  v.  New  York,  92  U.  S.,  269 41 

Hennington  v.  Georgia,  163  U.  S.,  299 73 

Hepburn  v.  Ellzey,  2  Cranch,  445  125,  228 

Hepburn  v.  Griswold,  8  Wall.,  603  36, 102, 128 

Herman  v.  Phalen,  14  How.,  79 171 

Hinson  v.  Lott,  8  Wall.,  148    67, 197 

Hill  V.  Merchants,  etc.,  Co.,  134  U.  S.,  515 170 

Holden  v.  Hardy,  169  U.  S.,  366 349,  362 

Holden  v.  Joy,  17  Wall.,  211 219 

Hollingsworth  v.  Virginia,  3  Dall.  (U.  S.),  378 322 

Hollister  v.  Benedict,  etc.,  Co.,  113  U.  S.,  59 108 

Holmes  v.  Jennison,  14  Pet,  564 237,  263 

Holyoke  Co.  v.  Lyman,  15  Wall.,  500 188 

Home  of  the  Friendless  v.  Rouse,  8  Wall.,  430 149, 151, 157 

Hooper  v.  California,  155  U.  S.,  648 74,  78 

Hopkins  v.  United  States,  171  U.  S.,  578 84 

Hoppens  v.  Jenches,  8  R.  I.,  453 20 

Hopt  V.  Utah,  110  U.  S.,  574 138 

Horn  Silver  Mining  Co.  v.  New  York,  143  U.  S.,  305 55 

Hornbuckle  v.  Toombs,  18  Wall.,  648 241 

Horher  v.  United  States,  143  U.  S.,  207,  570 106,  287 

Houston  V.  Moore,  5  Wheat.,  1 121 

Houston  V.  Texas,  177  U.  S.,  66  145, 172, 173 

Harvard  v.  Citizens',  etc.,  Co.,  12  App.  D.  C,  222 20 


Xxiv  TABLE    OF    CASES. 

Hoyt  V.  Sheldon,  1  Black.,  518 238 

Hucless  V.  Childrey,  135  U.  S.,  662 168 

Huling  V.  Kaw  Valley  Ry.  Co.,  130  U.  S.,  559 307,  376 

Humphrey  v.  Pegues,  16  Wall.,  244  149, 151, 158 

Hung-Hang,  Ex  parte,  108  U.  S.,  522 387 

Huntington  v.  Attrill,  146  U.  S.,  657 .• .  .249,  252 

Hunt  V.  Hunt,  131  U.  S.,  clxv..  Appendix 184, 192 

Hurtado  v.  California,  110  U.  S.,  516 361 

Huse  V.  Glover,  119  U.  S.,  543 89,  91,  202,  267,  351 

Hylton  V.  United  States,  3  Dall.,  171 11,  24 

I. 

Indiana  v.  Kentucky,  136  U.  S.,  479  231 

Indianapolis,  etc.,  Ry.  Co.  v.  Horst,  93  U.  S.,  291 225 

Inglis  V.  Trustees  Sailors'  Snug  Harbor,  3  Pet,  99 211 

Inman  Steamship  Co.  v.  Tinker,  94  U.  S.,  238 201,  261,  319 

Insurance  Co.  v.  Massachusetts,  10  Wall.,  56 655 

Insurance  Co.  v.  Morse,  20  Wall.,  450  78,224 

Interstate  Commerce  Com.  v.  Brimson,  154  U.  S.,  447  .  .124,  223 

In  re  Ayres,  123  U.  S.,  443  167,  324 

Converse,  137  U.  S.,  624 3b.^ 

Debs,  158  U.  S.,  564,  581 106, 124,  284,  366 

Jackson,  96  U.  S.,  727 130 

Kemmler,  136  U.  S.,  436  : 316 

Lockwood,  154  U.  S.,  116  256,  364 

Manning,  139  U.  S.,  504  369 

Metzger,  5  How.,  176 286,  387 

Milligan,  4  Wall.,  2  297 

Oliver,  17  Wis.,  681 133 

Quarles,  158  U.  S.,  507 130 

Sawyer,  124  U.  S.,  200 292 

Iowa  V.  Illinois,  147  U.  S.,  1 331 

Iowa  V.  Illinois,  151  U.  S.,  238 231 

Iowa  Cent.  Ry.  v.  Iowa,  160  U.  S.,  889 255,  292,  365,  372 


TABLE     OF     CASES.  XXV 


J- 

Jackson,  Ex  parte,  96  U.  S.,  737 105,  298 

Jackson  v.  Lampshire,  3  Pet,  280 175 

James  v.  Campbell,  104  U.  S.,  356 108 

Jefferson  Branch  Bank  v.  Skelly,!  Black.,  436. 147, 151 

Johnson  v.  OfCutt,  4  Met.  (Ky.) ,  20 20 

Johnson  v.  Sayre,  158  U.  S.,  109 300 

Jones  V.  Brim,  165  U.  S.,  180 344 

Jones  V.  United  States,  137  U.  S.,  202 274 

Jones  V.  Van  Zandt,  5  How.,  215 264 

Juillard  v.  Greenman,  110  U.  S.,  421 37, 102 

K. 

Kauffman  v.  Wootters,  138  U.  S.,  285 '. 373 

Kaukauna  Water  Power  Co.  v.  Green  Bay  &  Miss.  Canal 

Co.,  142  U.  S.,  254 360 

Kearned,  Ex  parte,  7  Wheat.,  38 311 

Kelley  v.  Hedden,  124  U.  S.,  196 286 

Kemmler,  Zn  re,  136  U.  S.,  436 316 

Kemp's  Case,  16  Wis.,  359 133 

Kendall  v.  United  States,  12  Pet.,  524   2.09,224 

Kennard  v.  Louisiana,  92  U.  S.,  480 281,  362 

Kentucky  v.  Dennison,  24  How.,  66 224,  228,  261 

Kentucky  Railroad  Tax  Cases,  115  U.  S.,  321,  331 375,382 

Ker  V.  niinois,  119  U.  S.,  436 259 

Keyes  v.  United  States,  109  U.  S.,  336 214 

Kidd  V.  Pearson,  128  U.  S.,  1 68,  343 

Kilbourn  v.  Thompson,  103  U.  S.,  168 18 

Kimmish  v.  Ball,  129  U.  S.r  217  77,  258 

King  V.  Mullins,  171  U.  S.,  404 341 

Kirby  v.  Lake  Shore,  etc..  Railroad,  120  U.  S.,  130,  138 110 

Kirtland  &  Hotchkiss,  100  U.  S.,  491 356 

Knole  V.  United  States,  95  U.  S.,  149 216 


XXVi  TABLE    OF    CASES. 

Knowles  v.  Gas  Light  Coke  Co.,  19  Wall.,  58 243,  244 

Knowlton  v.  Moore,  179  U.  S.,  — 13,  29 

Knox  V.  Lee,  12  Wall.,  457 6,  36,  307 

Knox  V.  United  States,  95  U.  S.,  149 216 

Kohl  V.  United  States,  91  U.  S.,  367 130,  237,  308 

Kollock,  J?i  re,  165  U.  S.,  526 82 

Koshkonong  v.  Burton,  104  U-  S.,  668 193 

Kring  v.  Missouri,  107  U.  S.,  221 146 

L. 

Laing  v.  Rigney,  160  U.  S.,  531 251 

Lake  Shore,  etc.,  Ry.  Co.  v.  Ohio,  173  U.  S.,  285 74  : 

Lake  Shore,  etc.,  Ry.  Co.  v.  Smith,  173  U.  S.,  684 338 

Lamar  v.  prowne,  92  U.  S.,  187 114, 116 

Lambert  v.  Barrett,  159  U.  S.,  660 

Lane  County  v.  Oregon,  7  Wall.,  71 5 

Lange,  Ex  parte,  18  How.,  163 309,  387,  388 

Laramie  Co.  v.  Albany  Co.,  92  U.  S.,  307 381 

Lascelles  v.  Georgia,  148  U.  S.,  537    261,262 

Lattimer  v.  Poteet,  14  Pet.,  4 290 

Lawton  v.  Steele,  152  U.  S.,  132 347 

League  v.  DeYoung,  11  How.,  185  171 

Leeper  v.  Texas,  139  U.  S.,  462  364 

Legal  Tender  Cases,  12  Wall.,  467  36, 102, 128 

Lehigh  Valley  Ry.  Co.  v.  Pennsylvania,  145  U.  S.,  192 65 

Lehigh  Water  Co.  v.  Easton,  121  U.  S.,  388 171 

Leisy  v.  Hardin,  135  U.  S.,  100 41,  44,  70 

Leitensdorfer  v.  Webb,  20  How.,  176  210 

Leloup  V.  Mobile,  127  U.  S.,  641  62 

Lent  V.  Tillson,  140  U.  S.,  316,  325 374 

Leon  V.  Galceran,  11  Wall.,  185 90 

L'Hote  V.  New  Orleans,  177  U.  S.,  587 351 

Lewis  V.  Femendorf,  2  Johns  Cases 20 

License  Tax  Cases,  5  Wall.,  462 33,  70, 140,  32a 


TABLE     OF     CASES.  XXVll 

Lincoln  County  v.  Luning,  133  U.  S.,  529 228,  230,  322 

Lindsay  &  Phelps  Co.  v.  Mullen,  176  U.  S.,  126 352 

Liverpool  Ins.  Co.  v.  Mass.,  10  Wall.,  566   78,260 

Liverpool,  etc.,  Co.  v.  Com'rs  of  Emigration,  113  U.  S.,  33. .  226 

Livingston  v.  Moore,  7  Pet,  469   292,  318 

Livingston  v.  Story,  9  Pet.,  632 110 

Loaker  v.  Maynard,  179  U.  S.,  — 150 

Locke  V.  New  Orleans,  4  Wall.,  172 136 

Lockwood,  7/1  re,  154  U.  S.,  116 356,  364 

Logan  V.  United  States,  114  U.  S.,  283 130 

Loney,  Z/i  re,  134  U.  S.,  372 17 

Looker  v.  Maynard  (1900) 390 

Long  Island,  etc.,  Co.  v.  Brooklyn,  166  U.  S.,  691 153 

Long  Island  Water  Supply  Co.  v.  Brooklyn,  166  U.  S.,  685. .   375 

Lord  V.  Goodall,  etc.,  Co.,  102  U.  S.,  541 87 

Lottowanna,  The,  21  Wall.,  558 9a 

Loughborough  v.  Lake,  5  Wheat,  317 125, 140,  275, 

Louisiana  v.  Mayor  of  New  Orleans,  109  U.  S.,  285 349. 

Louisiana  v.  St  Martin's  Parish,  111  U.  S.,  716 172; 

Louisiana  ex  rel.,  Nelson  v.  St  Martin's  Parish,  111  U.  S., 

716 15S 

Louisiana  v.  Pillsbury,  105  U.  S.,  278 169 

Louisiana  v.  Texas,  176  U.  S.,  1 205,  228,  326 

Louisville  Gas  Co.  v.  Citizens'  Gas  Co.,  115  U.  S.,  683 169 

Louisville,  etc.,  R.  Co.  v.  Schmidt  177  U.  S.,  230 255,  367 

Louisville,  etc.,  Ry.  Co.  v.  Mississippi,  133  U.  S.,  587 '     60 

Low  V.  Austin,  13  Wall.,  29 49^  198 

Lowe  V.  Kansas,  163  U.  S.,  81 37I 

Luther  v.  Borden,  7  How.,  1 209,  280 

Luxton  V.  North  River  Bridge  Co.,  153  U.  S.,  525 91 

Lyng  V.  Michigan,  135  U.  S.,  161 70 


XXViii  TABLE    OF    CASES. 


M. 


McAllister  v.  United  States,  141  U.  S.,  174 274 

McCall  V.  California,  136  U.  S.,  104 46 

McClurg  V.  Kingsland,  1  How.,  202,  206 107 

McCormick  v.  Sullivant,  10  Wheat,  192 110 

McCracken  v.  Hayward,  2  How.,  608 155 

McCready  v.  Virginia,  94  U.  S.,  391 254 

McCullough  V.  Maryland,  4  Wheat,  416  .  .3,  24, 104, 1:^8,  272,  284 

McCullough  V.  Virginia,  172  U.  S.,  102 160, 161) 

M'Elmoyle  v.  Cohen,  13  Pet,  312,  325 : .  .246,  247 

McFarland  v.  Jackson,  137  U.  S.,  258 193 

McGahey  v.  Virginia,  135  U.  S.,  662    167,324 

McGee  v.  Mathis,  4  Wall.,  143 151 

McGlynn  v.  Magran,  8  Wall.,  639 102 

McGuire  v.  Massachusetts,  3  Wall.,  387 70 

McHenry  v.  Alford,  168  U.  S.,  651 52 

McKane  v.  Durston,  153  U.  S.,  684,  687  260,  371 

McLanahan  v.  Ins.  Co.,  1  Pet,  182 301 

McMillan  v.  McNeill,  4  Wheat,  212 100, 195 

McNulty  V.  California,  149  U.  S.,  654 372 

McNulty  V.  Batty,  10  How.,  72 268 

McNeil,  Ex  parte,  13  Wall.,  236 71 

McPherson  v.  Blocher,  146  U.  S.,  1  9,  206,  207 

Mechanics'  B'k  v.  Un.  B'k,  22  Wall.,  676 Ii5 

Mackey  v.  Coxe,  18  How.,  100 274 

Mackin  v.  United  States,  117  U.  S.,  348 300 

Mager  v.  Grima,  8  How.,  492 357 

Magoun  v.  111.  Trust  &  Savings  Bk.,  18  Sup.  Ct  Rep.,  594. .   357 

Mahon  v.  Justice,  127  U.  S.,  700   259,  320 

Mame  v.  Grand  Trunk  Ry.  Co.,  142  U.  S.,  217 52 

Manning,  In  re,  139  U.  S.,  504 369 

Marbury  v.  Madison,  1  Cranch,  137 209,  221,  224 

Merchant  v.  Penn.  R.  Co.,  153  U.  S.,  380 377 


TABLE    OF    CASES.  XXIX 

Martin  v.  Hunter,  1  Wheat,  304 4,  235 

Martin  v.  Mott,  12  Wheat,  19 122 

Marye  v.  Parsons,  114  U.  S.,  325 165 

Maryland  v.  Baltimore  &  Ohio  R.  R.  Co.,  3  How.,  534 177 

Mason  v.  Haile,  12  Wheat,  373 174 

Mason  v.  Missouri  (1900)    390 

Massachusetts  v.  Western  Un.  Tel.  Co.,  141  U.  S.,  40 53 

Maxwell  v.  Dow,  176  U.  S.,  581 .257,  317 

May  &  Co.  v.  New  Orleans,  178  U.  S.,  496 49,  50 

Mayhew  v.  Thatcher,  6  Wheat,  129 247 

Mechanics',  etc..  Bank  v.  DeboU,  18  How.,  380 151 

Mech.  &  Traders'  Bk.  v.  Shelly,  1  Black.,  436 149 

Mech.  &  Traders'  Bk.  v.  Thomas,  18  How.,  384 170 

Mechanics',  etc.,  Bank  v.  Union  Bank,  22  Wall.,  276 211,  214 

Medbery  v.  Ohio,  24  How.,  413 240 

Memphis  v.  Brown,  97  U.  S.,  300 172 

Memphis  Gas  Light  Co.  v.  Shelby  Co.  Taxing  Dist,  109 

U.  S.,  398 190 

Memphis,  etc.,  R.  Co.  v.  Gaines,  97  U.  S.,  697 150, 189 

Memphis,  etc.,  R.  Co.  v.  Loftin,  105  U.  S.,  258 189 

Memphis  v.  United  States,  97  U.  S.,  293 170, 171 

Mercantile  Bank  v.  New  York,  121  U.  S.,  138 358 

Merchants',  etc.,  Bank  v.  Penn.,  167  U.  S.,  461 382 

Merrick  v.  Giddings,  8  Mo.,  55 20 

Merryman,  Ex  parte,  Taney,  246 • 133 

Meyer  v.  Richmond,  172  U.  S.,  83 ' 376 

Meyer  v.  Tupper,  1  Black.,  522 90 

Mills  V.  Brown,  16  Pet,  525 235 

Mills  V.  Duryee,  7  Cranch,  481 247 

Mills  V.  St  Clair  Co.,  8  How.,  569 96 

Miller  v.  New  York,  109  U.  S.,  385 93 

Miller  v.  State,  15  Wall.,  493 150 

Miller  v.  Texas,  153  U.  S.,  535 258,  292 

Miller  v.  United  States,  11  Wall.,  268  113, 115,  307 

Milligan,  Ex  parte,  4  Wall.,  1 133, 134,  237,  266,  301 


XXX  TABLE     OF     CASES. 

Milwaukee  &  St.  Paul  Ry.  Co.  v.  Solon,  169  U.  S.,  133 75 

Minnesota  v.  Barber,  136  U.  S.,  314 79 

Minn.  Ry.  Co.  v.  Beckwith,  129  U.  S.,  26 342,  346 

Minnesota,  etc.,  Ry.  Co.  v.  Emmons,  149  U.  S.,  364 71,  345 

Minor  v.  Happersett,  21  Wall.,  162   :333,  385 

Minneapolis,  etc.,  Co.  v.  Herrick,  127  U.  S.,  210 346,  364 

Minneapolis,  etc.,  R.  R.  Co.  v.  Nelson,  149  U.  S.,  368 345 

Miner  &  Markham,  28  Fed.  Rep.,  387 20 

Mississippi,  v.  Johnson,  4  Wall.,  475 223 

Miss.,  etc.,  R.  Co.  v.  McClure,  10  Wall.,  511 170 

Missouri  V.  Iowa,  7  How.,  660 231 

Missouri  v.  Kentucky,  11  Wall.,  397 331 

Missouri  v.  Lewis,  101  U.  S.,  22 292,  366,  374 

Missouri  v.  McCann,  174  U.  S.,  580 75 

Missouri  Ry.  Co.  v.  Mackey,  127  U.  S.,  206 346 

Mitchell  V.  Clark,  110  U.  S.,  633 193,  240 

Mitchell  V.  Harmony,  13  How.,  115  301 

Mitchell  V.  Leavensworth  Co.,  91  U.  S.,  206 27 

Mitchell  V.  Lenox,  14  Pet,  49 241 

Mo.  Pac.  Ry.  Co.  v.  Fitzgerald,  160  U.  S.,  556 241 

Mo.*  Pac.  Ry.  Co.  v.  Humes,  115  U.  S.,  512 342 

Mo.  Pac.  R.  Co.  V.  Mackey,  127  U.  S.,  205 364 

Mo.  Pac.  R.  Co.  V.  Nebraska,  164  U.  S.,  403 362 

Mobile  Co.  v.  Kimball,  102  U.  S.,  691 88,  381 

Monongahela  Nav.  Co.  v.  United  States,  148  U.  S.,  312  . 309 

Montello,  The,  11  Wall.,  411   89,91 

Moore  v.  Am.  Trans.  Co.,  24  How.,  1 87 

Moore  v.  Greenhow,  114  U.  S.,  338  164 

Moore  v.  Illinois,  14  How.,  13 264,  302,  309 

Moran  v.  New  Orleans,  112  U.  S.,  69 47,  50 

Morley  v.  Lake  Shore  &  M.  Ry.  Co.,  146  U  S.,  162 183,  343 

Mormon  Church  v.  United  States,  136  U.  S.,  1 270,271,294 

Morgan  v.  Louisiana,  93  U.  S.,  217  80 

Morgan,  etc.,  Co.  v.  Louisiana,  118  U.  S.,  455,  467 143 

Morgan's  Steamship  Co.  v.  Louisiana,  118  U.  S.,  455 80 


TABLE     OF     CASES.  XXXI 

Morgan  v.  Parham,  16  Wall.,  475 41 

Mugler  V.  Kansas,  123  U.  S.,  623   258,  306 

Mullan  V.  United  States,  140  U.  S.,  240 214 

Mulligan  v.  Corbins,  7  Wall.,  487 181 

Mumma  v.  Potomac  Co.,  8  Pet,  281 175 

Munn  V.  Illinois,  94  U.  S.,  113 55,  72, 143, 153, 184,  350,  352 

Murdock  v.  Memphis,  20  Wall.,  620 238 

Murphy  v.  Ramsey,  114  U.  S.,  44  271,  293,  294 

Murray's  Lessees  v.  Hoboken,  etc.,  Co.,  18  How.,  272 299,  302 

N. 

Nagle,  In  re,  1Z5  V.  S.,  1 210 

Nashville,  etc.,  Ry.  v.  Alabama,  128  U.  S.,  96 77,  266,  345 

Natal  V.  Louisiana,  139  U.  S.,  621  344 

Nat.  Bk.  V.  Yankton  Co.,  101  U.  S.,  129 271 

Neagle,  In  re,  135  U.  S.,  1 225 

Neal  V.  Delaware,  103  U.  S.,  370,  397 330,  385,  386 

Nebraska  v.  Iowa,  143  U.  S.,  359 231 

Neil  V.  Ohio,  3  How.,  720 174 

Neves  v.  Scott,  13  How.,  268 110 

New  Hampshire  v.  Louisiana,  108  U.  S.,  76 228 

New  Haven,  etc.,  Co.  v.  Hamersley,  104  U.  S.,  1 183 

New  Jersey  v.  New  York,  5  Pet,  284 224,  228 

New  Jersey  v.  Wilson,  7  Cranch,  134 151, 153,. 154 

New  Jersey  v.  Yard,  95  U.  S.,  114 149 

New  Orleans  v.  New  Orleans  Water  Co.,  142  U.  S.,  89 

153, 185, 193,  359,  376 

New  Orleans  v.  The  Steamship,  20  Wall.,  387 211 

New  Orleans  Gas  Co.  v.  Louisiana  Light  Co.,  115  U.  S.,  650.   159 

New  Orleans  Water  Works  Co.  v.  Rivers,  115  U.  S.,  674 169 

New  Orleans,  etc.,  R.  R.  Co.  v.  Louisiana,  157  U.  S.,  219 187 

New  Orleans,  etc.,  R.  R.  v.  Mississippi,  112  U.  S.,  12 93 

Newport  &  Cincinnati  Bridge  Co.  v.  U.  S.,  105  U.  S.,  470. ...     93 
New  York  v.  Com'rs  of  Taxes,  3  Black.,  620 28 


XXxii  TABLE     OF    CASES. 

New  York,  City  of,  v.  Miln,  11  Pet,  102 4X),  41 

New  York  v.  Roberts,  171  U.  S.,  658 55 

New  York  Life  Insurance  Co.  v.  Cravens,  178  U.  S.,  389  ...     78 

New  York,  etc.,  Ry.  v.  Pennsylvania,  158  U.  S.,  431 65 

N.  Y.,  Lake  Erie  &  W.  Ry.  Co.  v.  Penn.,  153  U.  S.,  628 173 

New  York,  etc.,  Ry.  Co.  v.  People  of  New  York,  165  U.  S., 

628 345 

Newton  v.  Mahoning  Co.,  100  U.  S.,  548 183 

Nobles  V.  Georgia,  168  U.  S.,  398 372 

Norfolk,  etc.,  Ry.  Co.  v.  Penn.,  136  U.  S.,  114 57,  260 

North  Carolina  v.  Temple,  134  U.  S.,  22 230,  323 

Norton  v.  Switzer,  93  U.  S.,  355 90 

Norwick,  etc.,  R.  R.  v.  Johnson,  15  Wall.,  195  . . : 102 

Nudd  V.  Burrows,  91  U.  S.,  426 225 

O. 

Ogden  V.  Saunders,  12  Wheat,  213 98, 100, 135, 136, 194, 195 

Ohio  V.  Thomas,  173  U.  S.,  276 83, 127 

Ohio  Life  Ins.  Co.  v.  Debalt,  16  How.,  416 188 

Ohio  Oil  Co.  V.  Indiana,  177  U.  S.,  190 351 

Olcott  V.  The  Supervisors,  16  Wall.,  678 170 

Oliver,  In  re,  17  Wis.,  681 133 

Olney  v.  Arnold,  3  Dall.  (U.  S.),  308 237 

Orient  Ins.  Co.  v.  Daggs,  172  U.  S.,  557 34 

Osborn  v.  Florida,  164  U.  S.,  650  47,  241 

Osborn  v.  Livingston,  13  Wall.,  654 329 

Osborn  v.  Mobile,  16  Wall.,  479 65 

Osborn  v.  United  States,  91  U.  S.,  474 216 

Osborn  v.  United  States  Bank,  9  Wheat,  738 26,  230,  323 

Owings  V.  Speed,  5  Wheat.,  420 171 

Ouachita,  etc.,  Co.  v.  Aiken,  121  U.  S.,  444 44,  71,  319 


TABLE    OF    CASES.  XXXlll 


Face  V.  Burgess,  92  U.  S.,  372 141 

Pac.  Ex.  Co.  V.  Seibert,  142  U.  S.,  339 341 

Pacific  Ins.  Co.  v.  Soule,  7  Wall.,  433 11 

Pacific  R.  R.  V.  Ketchum,  3  Ball.  (U.  S.),  289 Ill 

Pac.  R.  R.  Co.  V.  Maguire,  20  Wall.,  36 189 

Packet  Co.  v.  Catlettsburg,  105  U.  S.,  559 143 

Packet  Co.  v.  Keokuk,  95  U.  S.,  80 71,  96, 143 

Packet  Co.  v.  St.  Louis,  100  U.  S.,  423 71,143 

Page  V.  United  States,  127  U.  S.,  67 19 

Pargoud  v.  United  States,  13  Wall.,  156 215 

Parkinson  v.  United  States,  121  U.  S.,  281. 300 

Parks,  Ex  parte,  93  U.  S.,  18 387 

Parmelee  v.  Lawrence,  11  Wall.,  36 238 

Parsons  v.  Bedford,  3  Pet,  433 309,312,313,314 

Parsons  v.  United  States,  167  U.  S.,  324 125 

Passenger  Cases,  7  How.,  286 40,  42 

Patapsco  Guana  Co.  v.  North  Carolina,  171  U.  S.,  345 79 

Patterson  v.  Kentucky,  97  U.  S.,  501 109 

Paul  V.  Virginia,  8  Wall.,  168 74,  78,  253,  260 

Paulson  V.  City  of  Portland,  149  U.  S.,  30 359 

Pawlet  V.  Clark,  9  Cranch,  292 293 

Pearce  v.  Texas,  155  U.  S.,  311 370 

Pearsall  v.  Great  Northern  R'y  Co.,  161  U.  S.,  646 152 

Peck  V.  Chic.  &  N.  W.  R'y  Co.,  94  U.  S.,  164 183 

Peete  v.  Morgan,  19  Wall.,  581 80,  202 

Peik  V.  C.  &  N.  W.  R'y  Co.,  94  U.  S.,  164 353 

Pembina,  etc.,  Co.  v.  Pennsylvania,  125  U.  S.,  181 

51,  260,  348,  366 

Pennoyer  v.  McConnaughy,  140  U.  S.,  1 230,  322 

Pennoyer  v.  Neff,  95  U.  S.,  7r4 245,  362 

Pennoyer  v.  Virginia,  140  U.  S.,  1 324 

Pensacola  Tel.  Co.  v.  Western  Un.  Tel.  Co.,  96  U.  S.,  1. . . . 

43,51,61,105 


XXxiv  TABLE     OF     CASES. 

Pennsylvania  College  Cases,  13  Wall.,  190 152,182 

Pennsylvania  v.  Quicksilver  Co.,  10  Wall.,  553 226 

Pennsylvania  v.  Wheeling,  etc.,  Bridge  Co.,  18  How.,  421. .  143 

People  V.  Barber  (1900)   390 

People  V.  Commissioners,  4  Wall.,  244 36 

People  V.  Comm'rs,  104  U.  S.,  466 200 

People  V.  Compagnie  Generale  Transatlantique,  107  U.  S., 

59 41,  47, 19a 

Peoples'  Bank  v.  Calhoun,  102  U.  S.,  256 Ill 

Permoli  v.  First  Municipality,  3  How.,  589 294 

Pervear  v.  Mass.,  5  Wall.,  475 33,  316,  320 

Peyronx  v.  Howard,  7  Pet.,  324 90 

Phila.  Fire  Asso.  v.  New  York,  119  U.  S.,  110 78,  260,  349 

Philadelphia,  etc..  Steamship  Co.  v.  Pennsylvania,  122  U.  S., 

326 43,  57,  66 

Phillips  V.  Pryne,  92  U.  S.,  130 126 

Pickard  v.  Pullman  So.  Car  Co.,  117  U.  S.,  34 58 

Pierce  v.  Carskadon,  16  Wall.,  234 137 

Piqua  Branch  Bank  v.  Knoop,  16  How.,  369 147, 149, 151 

Pittsburg,  etc.,  Co.  v.  Backus,  154  U.  S.,  421. 382 

Pittsburg  &  Southern  Canal  Co.  v.  Louisiana,  156  U.  S.,  590  199 

Planters'  Bk.  of  Miss.  v.  Sharp,  6  How.,  301 177 

Plumley  v.  Massachusetts,  155  U.  S.,  461 82 

Poindexter  v.  Greenhow,  114  U.  S.,  270 145, 160, 164 

Pollard's  Lessee  v.  Hagan,  3  How.,  212. 266 

Pollock  V.  Farmers'  Loan  &  Trust  Co.,  157  U.  S.,  429;  158 

U.  S.,  601 12, 13, 141 

Poppe  V.  Langford,  104  U.  S.,  770 240 

Porter  v.  Foley,  24  How.,  415 240 

Postal  Telegraph  Co.  v.  Charleston,  153  U.  S.,  692 54,  64 

Pound  V.  Turck,  95  U.  S.,  459 88,  94 

Powell  V.  Pennsylvania,  127  U.  S.,  678 348 

Prentiss  v.  Com.  Bank,  5  Rand.,  697 20 

Presser  v.  Illinois,  116  U.  S.,  252 122,  257,  296 

Prigg  V.  Pennsylvania,  16  Pet,  539 128,  263 


TABLE     OF     CASES.  XXXV 

Prize  Cases,  2  Black.,  635 213 

Providence  Bank  v.  Billings,  4  Pet,  514 153, 175, 190 

Provident  Ins.  Co.  v.  Mass.,  6  Wall.,  611 28 

Provident  Inst.  v.  Jersey  City,  113  U.  S.,  506 348 

Pub.  Works  v.  Columbia  College,  17  Wall.,  521 243 

Pullman  Palace  Car  Co.  v.  Pennsylvania,  141  U.  S.,  18 36 

Pullman  Palace  Car  Co.  v.  Hayward,  141  U.  S.,  36 54 

Pumpelly  v.  Green  Bay  &  M.  Canal  Co.,  13  Wall.,  16G 308 

Pierce  v.  Somerset  R'y  Co.,  171  U.  S.,  641 173 

Q. 

Quarles,  In  re,  158  U.  S.,  507 133 

R. 

Rahrer,  In  re,  UO  V.  S.,  545 70 

Railroad  Commission  Cases,  116  U.  S.,  307 342 

Rapeir,  Ex  parte,  143  U.  S.,  110 106 

Railroad  Co.  v.  Fuller,  17  Wall.,  560 75 

Railroad  Co.  v.  Gill,  156  U.  S.,  649 339 

Railroad  Co.  v.  Gothard,  114  CJ.  S.,  136 238 

Railroad  Co.  v.  Huson,  95  U.  S.,  465 .41,  81 

Railroad  Co.  v.  Maryland,  21  Wall.,  456 55,  6o,  183, 199 

Railroad  Co.  v.  McClure,  10  Wall.,  511 181 

Railroad  Co.  v.  Palmes,  109  U.  S.,  257 152 

Railroad  Co.  v.  Peniston,  18  Wall.,  5 30, 130 

Railroad  Co.  v.  Penn.,  15  Wall.,  300 30 

Railroad  Co.  v.  Philadelphia,  101  U.  S.,  539 150 

Railroad  Co.  v.  Richmond,  19  Wall.,  584 47 

Railroad  Co.  v.  Wellman,  143  U.  S.,  339 338 

Rapier,  Ex  parte,  143  U.  S.,  110 106 

Ratterman  v.  Western  U.  Tel.  Co.,  127  U.  S.,  411 61 

Reagan  v.  Farmers'  Loan  &  Trust  Co.,  154  U.   S.,  362, 

76,  338,  354 


XXXVIU  TABLE  OF  CASES. 

Sohn  V.  Waterson,  17  Wall.,  596 193, 194 

Solomons  v.  United  States,  137  U.  S.,  342 108 

Soon  Hing  v.  Crowley,  113  U.  S.,  703 - 342 

South  Carolina  v.  Georgia,  93  U.  S.,  4 88 

Spalding  v.  Vilas,  161  U.  S.,  483 210 

Spencer  v.  Merchant,  125  U.  S.,  345 375,  381 

Spies  V.  Illinois,  123  U.  S.,  131 292,  298 

Spratt  V.  Spratt,  4  Pet,  393 98 

Springer  v.  United  States,  102  U.  S.,  586. . .  .11,  29, 102, 141,  303 

Spraigue  v.  Thompson,  118  U.  b.,  90 51 

Spring  Valley  Water  Co.  v.  Schottler,  110  U.  S.,  352 150 

Springville  v.  Thomas,  166  U.  S.,  707 277 

T. 

Taylor  v.  Beckham,  178  U.  S.,  548 281,  354 

Telegraph  Co.  v.  Adams,  155  U.  S.,  688 * 54,  65 

Telegraph  Co.  v.  Texas,  105  U.  S.,  465 41 

Tennessee  v.  Davis,  100  U.  S.,  257 225 

Tennessee  v.  Sneed,  96  U.  S.,  69 171 

Tennessee  v.  With  worth,  117  U.  S.,  129 150, 189 

Terrett  v.  Taylor,  9  Cranch,  43 293 

Terry,  Ex  parte,  128  U.  S.,  289 366 

Terry  v.  Anderson,  95  U.  S.,  628 171, 193* 

Texas  &  Pac.  Ry.  Co.  v.  Interstate  Trans.  Co.,  155,  585 94 

Texas  v.  White,  7  Wall.,  700 6,  7, 115,  281 

The  Cherokee  Tobacco,  11  Wall.,  616 286 

The  Grapeshot,  9  Wall.,  129 115 

The  Justices  v.  Murray,  9  Wall.,  274 314 

The  Lotta wanna,  21  Wall.,  558 110 

"The  Lucy,"  8  Wall.,  307 Ill 

"The  Thomas  Gibbons,"  8  Cranch,  421 114 

The  Victory,  6  Wall.,  382 238 

Thomas  v.  Gray,  169  U.  S.,  264 287 

Thompson  v.  Missouri,  171  U.  S.,  380 139 


TABLE     OF     CASES.  XXXIX 

Thompson  v.  Railroad  Co.,  9  Wall.,  579 31,  43, 129 

Thompson  v.  Utah,  170  U.  S.,  343 277 

Thompson  v.  United  States,  142  U.  S.,  471 142 

Thompson  v.  Whitman,  8  Wall.,  457 243 

Thorington  v.  Montgomery,  147  U.  S.,  490 292,  306 

•Thurlow  V.  Massachusetts,  5  How.,  504 67,  69 

Tindal  v.  Wesley,  167  U.  S.,  204 229 

rinsley  v.  Anderson,  171  U.  S.,  101 366,  373 

Tomlinson  v.  Branch,  15  Wall.,  460. 151,  325 

Trademark  Cases,  100  U.  S.,  82 109 

Trademark  Cases,  100  U.  S.,  82 109 

Transportation  Co.  v.  Parkersburg,  107  U.  S.,  423 203 

Transportation  Co.  v.  Wheeling,  99  U.  S.,  273 203 

Trask  v.  Maguire,  18  Wall.,  391 150, 189 

Trustees  of  Vincennes  University  v. -Indiana,  14  How.,  268.   155 

Trustees  Wabash  Canal  Co.  v.  Beers,  2  Black.,  448 180 

Tryon  v.  Munson,  77  Pa.  St.,  250 356 

Tucker  v.  Furguson,  22  Wall.,  574 152, 188 

Tullis  V.  Lake  Erie  &  Western  R'y  Co.,  175  U.  S.,  348 352 

Turner  v.  Maryland,  107  U.  S.,  38 80 

Turnpike  Co.  v.  State  of  Maryland,  3  Wall.,  210 181 

Turpin  v.  Burgess,  117  U.  S.,  504 141 

Twitcheil  v.  Pennsylvania,  7  Wall.,  321 235,  292,  302,  311 

Tyler  v.  Defrees,  11  Wall.,  331 113, 115 

U. 

Un.  Pass.  R.  Co.  v.  Phila.,  101  U.  S.,  528 150 

United  States  v.  Amedy,  11  Wheat,  392 250 

United  States  v.  Arjona,  120  U.  S.,  479 103, 112 

United  States  v.  Ballin,  144  U.  S.,  1 19 

United  States  v.  Bevan,  3  Wheat.,  336 119, 132 

United  States  v.  Brewster,  7  Pet,  164 103 

United  States  v.  Britton,  108  U.  S.,  206 110 

United  States  v.  Burns,  12  Wall.,  246 108 


xl  TABLE     OF     CASES. 

United  States  v.  Cantril,   4   Cranch,  167 103 

United  States  vs.  Carll,  105  U.  S.,  611 103 

United  States  v.  Combs,  12  Pet.,  72 42 

United  Stales  v.  Coolidge,  1  Wheat.,  415 310 

United  States  v.  Cooper,  4  Dall.  C.  Ct.,  341 20 

United  States  v.  Cruikshank,  92  U.  S.,.  542 292,296,333. 

United  States  v.  D'Anterive,  10  How.,  609 291 

United  States  v.  De  Walt,  128  U.  S.,  393 300 

United  States  v.  Dewett,*  9  Wall.,  41 126 

United  States  v.  Ducros,  15  How.,  38 291 

United  States  v.  Duell,  172  U.  S.,  576 109 

United  States  v.  E.  C.  Knight  Co.,  156  U.  S.,  1 84 

United  States  v.  Eaton,  144  U.  S.,  677 310 

United  States  v.  Eaton,  169  U.  S.,  331 219 

United  States  v.  Eliason,  16  Pet,  291 213 

United  States  v.  Fisher,  2  Cranch,  358 128, 131 

United  States  v.  Forty-three  Gallons  of  Whiskey,  93  U.  S., 

188 97 

United  States  v.  Fox,  95  U.  S.,  570 146 

United  States  v.  Gardner,  10  Pet.,  618 103 

United  States  v.  Gratiot,  14  Pet.,  526 130,  279 

United  States  v.  Gusman,  14  How.,  193 291 

United  States  v.  Halliday,  3  Wall.,  407 96,  97 

United  States  v.  Holmes,  5  Wheat.,  421 112 

United  States  v.  Howell,  11  Wall.,  432 103 

United  States  v.  Howland,  4  Wheat,  108 110 

United  States  v.  Hudson,  7  Cranch,  32 110,  321 

United  States  v.  Joint  Traffic  Assn.,  171  U.  S.,  505 86 

United  States  v.  Kirkpatrick,  9  Wheat.,  720 220 

United  States  v.  Klein,  13  Wall.,  128 215 

United  States  v.  La  Vengeance,  3  Dall.  (U.  S.),  297 301 

United  States  v.  Marigold,  9  How.,  560 103,  309 

United  States  v.  Maurice,  2  Brock.,  96,  105 121 

United  States  v.  Memphis,  97  U.  S.,  284 381 

United  States  v.  Mitchell,  2  Dall.  (U.  S.),  348 242 


TABLE    OF    CASES.  xli 

United  States  v.  New  Orleans,  103  U.  S.,  358 153 

United  States  v.  Norton,  97  U.  S.,  164 214 

United  States  v.  Old  Settlers,  148  U.  S.,  427 287 

United  States  v.  Padelford,  9  Wall.,  531 215 

United  States  v.  Palmer,  3  Wheat.,  610 Ill 

United  States  v.  Palmer,  128  U.  S.,  262 108 

United  States  v.  Perez,  9  Wheat,  979 309 

United  States  v.  Pillerin,  13  How.,  9 291 

United  States  v.  Pirates,  5  Wheat.,  184 Ill 

United  States  v.  Railroad  Co.,  17  Wall.,  322 30 

United  States  v.  Randenbusch,  8  Pet.,  288 103 

United  States  v.  Rauscher,  119  U.  S.,  407 262,  290 

United  States  v.  Reese,  92  U.  S.,  214 383,  384,  385 

United  States  v.  Rillieux,  14  How.,  189 291 

United  States  v.  Rodgers,  150  U.  S.,  249 112 

United  States  v.  Rogers,  4  How.,  567 278 

United  States  v.  The  Peggy,  1  Cranch,  103 ". 286 

United  States  v.  Thirty-five  Chests  of  Tea,  12  Wheat,  486.     90 

United  States  v.  Singer,  15  Wall.,  Ill 30 

United  States  v.  Smith,  5  Wheat.,  153 112 

United  States  v.  Symonds,  120  U.  S.,  46 121 

United  States  v.  Thompson,  93  U.  S.,  586 , 240 

United  States  v.  Tingry,  5  Pet.,  115 132 

United  States  v.  Turner,  7  Pet.,  132 103 

United  States  v.  Vigol,  2  Dall.  (U.  S.) ,  346 242 

United  States  v.  Villato,  2  Dall.   (U.  S.),  370 242 

United  States  v.  Wilson,  7  Pet.,  150 216 

United  States  v.  Wiltberger,  5  Wheat,  76 Ill,  242 

United  States  Bank  v.  Planters'  Bank,  9  Wheat,  904..  228,  230 

V. 

Vallandingham,  Ex  parte,  1  Wall.,  242 134 

Van  Allen  v.  Assessors,  3  Wall.,  573 35,  36 

Van  Hoffman  v.  Quincy,  4  Wall.,  535 151. 156  172 


Xlii  TABLE    OF    CASES. 

Vashon  v.  Greenhow,  135  U.  S.,  552,  716 16S 

Veazie  Bank  v.  Fenno,  8  Wall.,  533 11, 13,  31 

Veazie  v.  Moore,  14  How.,  568 89 

Verden  v.  Coleman,  22  How.,  192 235 

Vicksburg,  etc.,  R.  Co.  v.  Dennis,  116  U.  S.,  665 190 

Vicksburg,  etc.,  Ry.  Co.  v.  Putnam,  118  U.  S.,  545 225 

Vicksburg  v.  Tobin,  100  U.  S.,  430 203 

Vidal  V.  Girard's  Executors,  2  How.,  127 294 

Vincent  v.  California,  149  U.  S.,  648 372 

Virginia  Coupon  Cases,  114  U.  S.,  270 145,  160 

Virginia  v.  Rives,  100  U.  S.,  315 330,  335,  336 

Virginia  v.  Tennessee,  148  U.  S.,  503 204,  231 

Virginia,  Ex  parte,  100  U.  S.,  330 328,  329 

W. 

Wabash,  etc.,  Co.  v.  Hlinois,  118  U.  S.,  557 41,  57,  59 

Wade  V.  Lawder,  165  U.  S.,  624 241 

Walker  v.  Sauvinet,  92  U.  S.,  90 362. 

Walker  v.  South  Pac.  R.  R.  Co.,  165  U.  S.,  593 315 

Walker  v.  Whitehead,  16  Wall.,  314 158, 171 

Walston  V.  Nevin,  128  U.  S.,  578 381 

Walling  V.  Michigan,  116  U.  S.,  455 , 41,  45 

Wallach  v.  Van  Riswick,  92  U.  S.,  202 215 

Washington  University  v.  Rouse,  8  Wall.,  439 151, 157 

Waters-Pierce  Oil  Co.  v.  Texas,  177  U.  S.,  28 190 

Watson  V.  Mercer,  8  Pet.,  110 136,  240 

Ward  V.  Maryland,  12  Wall.,  418 41,  252,  256 

Ware  v.  Hylton,  3  Dall.,  199 219,  287,  289 

Ware  v.  United  States,  4  Wall.,  617 104 

Waring  v.  Clarke,  5  How.,  441 87 

Waring  v.  The  Mayor,  8  Wall.,  110 64, 198 

Watts  V.  Camors,  115  U.  S.,  353,  362 110 

Webber  v.  Virginia,  103  U.  S.,  344 108 

Weber  v.  Board  of  Harbor  Com'rs,  18  Wall.,  57 26r 


TABLE    OF    CASES.  f   TTgUf  FRSn 

Webster  v.  Reid,  11  How.,  437,  460 277,  302 

Wells,  Ex  parte,  18  How.,  307 215 

West  Riv.  Bridge  Co.  v.  Dlx,  6  How.,  507 152, 177,  307 

West  Tenn.  Bank  v.  Citizens'  Bank,  13  Wall.,  432 240 

West  Wisconsin  R.  R.  Co.  v.  Supervisors,  93  U.  S.,  598 152 

Western  Union  Tel.  Co.  v.  Alabama,  132  U.  S.,  472 37 

West  Un.  Tel.  Co.  v.  James,  162  U.  S.,  650 80,  352 

West.  Un.  Tel.  Co.  v.  Pendleton,  122  U.  S.,  347 51,  321 

Western  Union  Tel.  Co.  v.  Taggart,  163  U.  S.,  1 63 

Western  Union  Tel.  Co.  V.  Texas,  105  U.  S.,  460 51 

Weston  V.  Charleston,  2  Pet,  449 27,  35,  236 

Weyerhauser  v.  Minnesota,  176  U.  S.,  550 380 

Wharton  v.  Wise,  153  U.  S.,  155 205 

Wheaton  v.  Peters,  8  Pet.,  591 107 

Wheeler  v.  Jackson,  137  U.  S.,  245 193, 194 

Wheeling  Bridge  Case,  18  How.,  431 92, 104,  228 

White  V.  Hart,  13  Wall.,  646 170, 172 

White's  Bank  V.  Smith,  7  Wall.,  646 44 

Whitman  v.  Oxford  Nat.  Bk.,  176  U.  S.,  559 252 

Whitney  v.  Robertson,  124  U.  S.,  190 286 

Wiggins  Ferry  Co.  v.  East  St.  Louis,  107  U.  S.,  36 96,  202 

Wiley  V.  Sinkler,  179  U.  S.,  — 16 

Wilkerson  v.  Utah,  99  U.  S.,  130 316 

Wilmington  R.  R.  v.  Reid,  13  Wall.,  264 149, 151, 160 

Wilson  V.  Blackbird  Creek  Marsh  Co.,  2  Pet.,  241 92,  94 

Wilson  V.  Eureka  City,  173  U.  S.,  32 344 

Wilson  V.  McNamee,  102  U.  S.,  572 71 

Wilson  V.  North  Carolina,  169  U.  S.,  586,  600 .255,  367 

Willamette  Bridge  Co.  v.  Hatch,  125  U.  S.,  8 94 

Willard  v.  Presbury,  14  Wall.,  676 126 

Willard  v.  Tayloe,  8  Wall.,  557 102 

Williams  v.  Bruffy,  102  U.  S.,  248 235 

Williams  v.  Eggleston,  170  U.  S.,  304 173,  357 

Williams  v.  Mississippi,  170  U.  S.,  213 360 

Williams  v.  Wingo,  179  U.  S 176 


xliv  TABLE    OF    CASES. 

■Williamson  v.  New  Jersey,  laO  U.  S.,  189 153, 188 

Wilson,  Ex  parte,  114  U  S.,  415 309 

Winona  R.  R.  Co.  v.  Blake,  94  U.  S.,  180 153, 183,  353 

Wiscart  v.  Dauchy,  3  Ball.  (U.  S.),  321 237 

Wisconsin  v.  Pelican  Co.,  127  U.  S.,  292 231,  246 

Withers  v.  Buckley,  20  How.,  84 240,  307 

Withers  v.  Buckley,  26  How.,  84 88 

Wolff  V.  New  Orleans,  103  U.  S.,  358 172 

Woodruff  V.  Parham,  8  Wall.,  123 197,  254,  257 

Woodruff  V.  Trapnall,  10  How.,  203 145, 148 

Worcester  v.  State  of  Georgia,  6  Pet.,  515 98,  218,  290 

Wurts  V.  Hoagland,  114  U.  S.,  606 375 


Y. 


Yarborough,  Ex  parte,  110  U.  S.,  651 16 

Yerger,  Ex  parte,  8  Wall.,  85 134,  388 

Yesler  v.  Harbor  Line  Com'rs,  146  U.  S.,  646 344 

Yick  Wo  V.  Hopkins,  118  U.  S.,  356 337 

York  V.  Texas,  137  U.  S.,  15 369 


tJKIVERSITr 

CONSTITUTION  OF  THE  UNITED  STATES 


WITH  ANNOTATIOIf  OF  THE  DECISIOJ^S  OF  THE  SUPREME 
COURT  THEREOiY. 


PEE  AMBLE. 


"We,  the  people  of  the  United  States,  in  order  to  form  a 
more  perfect  union,  establish  justice,  insure  domestic  tran- 
quility, provide  for  the  common  defense,  promote  the  gen- 
eral welfare,  and  secure  the  blessings  of  liberty  to  our- 
selves and  our  posterity,  do  ordain  and  establish  this  Con- 
stitution for  the  United  States  of  America." 

1.  TJie  Constitution  emanated  from  the  people,  not 
the  State  legislatures. — 1.  "The  Convention  which 
framed  the  Constitution  was,  indeed,  elected  by  the 
State  legislatures.  But  the  instrument,  which  came 
from  their  hands,  was  a  mere  proposal,  without  obliga- 
tion or  pretensions  to  it.  It  was  reported  to  the  then 
existing  Congress  of  the  United  States,  with  a  request 
that  it  might  be  submitted  to  a  Convention  of  Dele- 
gates, chosen  in  each  State  by  the  people  thereof  under 


J  CONSTITUTION    OP    UNITED    STATES. 

the  recommendation  of  its  legislatures,  for  their  assent 
and  ratification. 

2.  "This  mode  of  proceeding  was  adopted,  and  by  the 
Convention,  by  Congress,  and  by  the  State  legislatures 
the  instrument  was  submitted  to  the  people.  They  acted 
upon  it,  in  the  only  manner  in  which  they  can  act  safely, 
effectively  and  wisely,  on  such  a  subject,  by  assembling 
in  convention.  It  is  true  they  assembled  in  their  sev- 
eral States,  and  where  else  should  they  have  assembled  ? 
"No  political  dreamer  was  ever  wild  enough  to  think  of 
breaking  down  the  lines  which  separated  the  States,  and 
of  compounding  the  American  people  into  one  common 
mass.  Of  consequence,  when  they  act  they  act  in  their 
States.  But  the  measures  they  adopt  do  not,  on  that  ac- 
count, cease  to  be  the  measures  of  the  people  themselves 
or  become  the  measures  of  the  State  government. 

3.  "From  these  conventions  the  Constitution  derives 
its  whole  authority.  The  government  proceeds  directly 
from  the  people;  is  ordained  and  established  in  the 
name  of  the  people ;  and  is  declared  to  be  ordained,  'in 
order  to  form  a  more  perfect  union,  establish  justice,  in- 
sure domestic  tranquility,  and  secure  the  blessings  of 
liberty  to  ourselves  and  our  posterity.'  The  assent  of 
the  States  in  their  sovereign  capacity  is  in  calling  the 
convention,  and  thus  submitting  that  instrument  to  the 


PREAMBLE.  3 

people.  But  tlie  people  were  at  perfect  liberty  to  ac- 
cept or  reject  it,  and  their  act  was  final.  It  required 
not  the  aJBSrmance  and  could  not  be  negatived  by 
the  State  governments.  The  Constitution  was  thus 
adopted. 

4.  "It  has  been  said,  that  the  people  had  already  sur- 
rendered all  their  powers  to  the  State  sovereignties  and 
had  nothing  more  to  give.  But,  surely,  the  question 
whether  they  may  resume  and  modify  the  powers 
granted  to  government  does  not  remain  to  be  settled  in 
this  country.  Much  more  might  the  legitimacy  of  the 
general  government  be  doubted  had  it  been  created  by 
the  States.  The  powers  delegated  to  the  State  sovereign- 
ties are  to  be  exercised  by  themselves,  not  by  a  distinct 
and  independent  sovereignty  created  by  themselves. 
Por  the  formation  of  a  league  such  as  was  the  confedera- 
tion the  State  sovereignties  were  certainly  competent. 
But  when,  'in  order  to  form  a  more  perfect  union,'  it 
was  deemed  necessary  to  change  this  alliance  into  an  ef- 
fective government,  possessing  great  and  sovereign  pow- 
ers and  acting  directly  on  the  people,  the  necessity  of  re- 
ferring it  to  the  people,  and  of  deriving  its  powers  di- 
rectly from  them  was  felt  and  acknowledged  by  all." 
Ch.  J.  Marshall,  M'Culloch  v.  Maryland,  4  Wheat.,  404. 

5.  "The  Constitution  of  the  United  States  was  or- 
dained and  established  by  the  people  of  the  United 


'4  CONSTITUTIOI^  OF  UIs'ITED  STATES. 

States,  for  themselves,  for  their  own  government  and 
not  for  the  government  of  the  individual  States."  "The 
people  of  the  United  States  framed  snch  a  government 
for  the  United  States  as  they  supposed  best  adapted  to 
the  situation  and  best  calculated  to  promote  their  in- 
terests." Ch.  J.  Marshall,  in  Barron  v.  Mayor,  etc.,  of 
Baltimore,  7  Peters,  242.  See  Story  on  Constitution, 
Sees.  351,  367. 

6.  "The  Constitution  of  the  United  States  was  or- 
dained and  established,  not  by  the  States  in  their 
sovereign  capacities,  but  emphatically  as  the  preamble 
of  the  Constitution  declares,  ^by  the  people  of  the 
United  States.'"  Martin  v.  Hunter,.!  Wheat.,  304- 
324. 

Mr.  Tucker,  in  his  Constitution  of  the  United  States, 
enters  into  an  elaborate  discussion.  His  contention  is 
that  the  preamble  means  that  the  people  of  each  of  the 
States,  by  a  convention  thereof,  ordained  and  established 
the  Constitution.  Tucker  on  Const.,  Sees.  123,  187. 
His  view  is  that  it  was  the  people  of  each  of  the  States 
rather  than  the  people  of  the  United  States. 

7.  The  United  States  constitute  one  nation. — "The 
people  of  the  United  States  constitute  one  nation  under 
one  government,  and  this  government  within  the  scope 
of  the  powers  with  which  it  is  invested  is  supreme.  On 
the  other  hand,  the  people  of  each  State  compose  a  State, 


TJNITED  STATES  ONE  UNION.  5 

having  its  own  government,  and  endowed  with  all  the 
functions  essential  to  separate  and  independent  exist- 
ence. The  State  disunited  might  exist.  Without  the 
States  in  union  there  could  be  no  such  political  body  as 
the  United  States."  Ch.  J.  Chase,  in  Lane  Co.  v.  Oregon, 
V  Wall.,  71.  'Without  them,  (the  States,)  the  general 
government  would  disappear  from  the  family  of  na- 
tions."    Collector  v.  Day,  11  Wall.,  125. 

8.  "That  the  United  States  form,  for  many  purposes, 
a  single  nation  is  not  denied.  In  war  we  are  one  peo- 
ple. In  making  peace  we  are  one  people.  In  all  com- 
mercial regulations  we  are  one  people.  In  many  other 
respects,  the  American  people  are  one ;  and  the  govern- 
ment which  is  alone  capable  of  controlling  and  manag- 
ing their  interests  in  all  these  respects,  is  the  govern- 
ment of  the  Union.  America  has  chosen  to  be  in  many 
respects,  and  to  many  purposes,  a  nation ;  and  for  these 
purposes  her  government  is  competent.  The  people 
have  declared,  that  in  the  exercise  of  all  the  powers 
given  for  these  objects,  it  is  supreme.  It  can  then  in 
effecting  these  objects  legitimately  control  all  indi- 
viduals or  governments  within  the  American  territory. 
Cohens  v.  Virginia,  6  Wheat,  264,  413. 

"The  United  States  is  not  only  a  government,  but  it 
is  a  National  government,  and  the  only  government,  in 
this  country,  that  has  the  character  of  nationality.     It 


6  CONSTITUTION  OP    UNITED    STATES. 

is  invested  with  power  over  all  the  foreign  relations  of 
the  country,  war,  peace  and  negotiations  and  intercourse 
with  other  nations,  all  which  are  forbidden  to  the  State 
governments."  Knox  v.  Lee,  12  Wall.,  457,  555.  And 
as  an  incident  of  sovereignty  it  can  exclude  aliens  from 
the  country;  and  by  act  of  Congress  can  abrogate  a 
treaty  with  a  foreign  power.  The  Chinese  Exclusion 
Case,  130  U.  S.,  581. 

Nature  of  the  Union. — "The  union  of  the  States  never 
was  a  purely  arbitrary  and  artificial  relation.  It  began 
among  the  Colonies  and  grew  out  of  common  origin, 
mutual  sympathies,  similar  interests,  and  geographical 
relations.  It  was  confirmed  and  strengthened  by  the 
necessities  of  war,  and  received  definite  form,  character 
and  sanction  from  the  Articles  of  Confederation.  By 
these  the  Union  was  solemnly  declared  to  'be  perpetual.' 
And  when  these  relations  were  found  to  be  inadequate 
to  the  exigencies  of  the  country,  the  Constitution  was  or- 
dained, 'to  form  a  more  perfect  union.' "  Texas  v. 
:White,  7  Wall.,  725. 

"Within  its  legitimate  sphere,  Congress  is  supreme, 
and  beyond  the  control  of  the  courts ;  but  if  it  steps  out- 
side of  its  constitutional  limitations,  and  attempts  that 
which  is  beyond  its  reach,  the  courts  are  authorized  to, 
and  when  called  upon  in  due  course  of  legal  proceedings 
must,  annid  its  encroachments  upon  the  reserved  power 


NATURE    OF    UNION.  7 

of  the  States  and  the  people."  U.  S.  v.  Eeese,  92  U.  S., 
221. 

"The  Constitution  in  all  its  provisions  looks  to  an  in- 
destructible union  of  indestructible  States.  There  was 
no  place  for  reconsideration  or  revocation  except 
through  revolution  or  through  dissent  of  the  States." 
Texas  v.  White,  7  Wall.,  700,  725,  726. 

The  case  of  Texas  v.  White  arose  on  these  facts.  The 
State  of  Texas  at  the  time  of  its  secession  from  the 
Union,  held  bonds  of  the  United  States  payable  to  the 
State  or  bearer.  The  insurgent  government  sold  these 
bonds,  and  they  were  purchased  by  the  defendant  in 
error,  White,  after  they  were  due.  He  was  charged 
with  notice  of  defect  in  the  title.  The  insurgent  gov- 
ernment could  not  divest  the  State  of  its  title ;  and  pub- 
lic property  of  a  State,  alienated  during  the  rebellion  by 
a  usurping  government  for  the  purpose  of  waging  war 
against  the  United  States,  may  be  reclaimed  for  the 
benefit  of  the  State  by  a  restored  government,  organ- 
ized in  allegiance  to  the  Union. 


8  CONSTITUTION   OF   UNITED    STATES.  [Art.  I 

AETICLE  I. 

Section  1.  "All  legislative  powers  herein  granted, 
shall  be  vested  in  a  Congress  of  the  United  States,  which 
shall  consist  of  a  Senate  and  House  of  Representatives." 

A  statute  (Act  Feb.  28,  1793)  attempted  to  impose 
upon  the  judges  of  the  district  courts  the  duty  of  taking 
evidence  of  claimants  for  pensions,  and  transmit  such 
proofs  and  a  list  of  the  claimants  to  the  Secretary  of 
War.  Some  of  the  judges  declined  to  execute  the  law, 
on  the  ground  that  the  duties  imposed  were  not  judicial 
duties.  A  change  in  the  law  rendered  decision  of  the 
question  by  the  Supreme  Court  unnecessary.  Hay- 
burns  Case,  2  DalL,  409  (note).     See,  post,  p.  223. 

HOUSE  OF  EEPRESEI^^TATIVES. 

Section  2.  "(1)  The  House  of  Representatives  shall 
be  composed  of  members  chosen  every  second  year  by  the 
people  of  the  several  States ;  and  the  electors  in  each  State 
shall  have  the  qualifications  requisite  for  electors  of  the 
most  numerous  branch  of  the  State  legislature.'' 

1.  Members  thus  chosen  by  districts,  into  which  the 
State  may  be  apportioned,  represent  the  entire  State  in 
its  sovereign  capacity.  McPherson  v.  Blacker,  146 
U.  S.,  1. 


Sec.  2.]  HOUSE  OF  REPRESENTATIVES.,  9 

2.  The  States  in  prescribing  the  qualifications  of 
voters  for  the  numerous  branch  of  their  own  legisla- 
tures, do  not  do  this  with  reference  to  the  election  of 
members  of  Congress.  JSTor  can  they  prescribe  the  quali- 
fications for  voters  for  members  of  Congress  eo  nomine. 
Thej  define  who  are  to  vote  for  the  popular  branch  of 
their  own  legislature,  and  the  Constitution  of  the  United 
States  says  the  same  persons  shall  vote  for  members 
of  Congress  in  that  State.  It  adopts  the  qualifications 
thus  furnished  as  the  qualifications  of  its  own  electors 
for  members  of  Congress. 

It  is  not  true,  therefore,  that  electors  for  members  of 
Congress  owe  their  right  to  vote  to  the  State  law  in  any 
sense  which  makes  the  exercise  of  the  right  to  depend  ex- 
clusively on  the  law  of  the  State.  The  right  is  based 
fundamentally  on  the  Constitution  which  created  the  of- 
fice of  member  of  Congress  and  declared  it  should  be 
elective,  and  pointed  to  the  means  of  ascertaining  who 
should  be  electors.  In  re  Yarhorougli,  110  U.  S.,  651. 
6G4. 

"(2)  No  person  shall  be  a  Representative  who  shall  not 
have  attained  to  the  age  of  twenty-five  years,  and  been 
seven  years  a  citizen  of.  the  United  States,  and  who  shall 
not,  when  elected,  be  an  inhabitant  of  that  State  in  which 
he  shall  be  chosen. 

"(3)  Representatives  and  direct  tasies  shall  be  appor- 
tioned among  the  several  States  which  may  be  included 


10  CONSTITUTION    OP    UNITED    STATES.  [Art.  I, 

within  this  Union,  according  to  their  respective  numbers, 
which  shall  be  determined  by  adding  to  the  whole  number 
of  free  persons,  including  those  bound  to  service  for  a  term 
of  years,  and  excluding  Indians  not  taxed,  three-fifths  of 
all  other  persons. 

(4)  "The  actual  enumeration  shall  be  made  within 
three  years,  after  the  first  meeting  of  the  Congress  of  the 
United  States,  and  within  every  subsequent  term  of  ten 
years,  in  such  manner  as  they  shall  by  law  direct. 

(5)  "The  number  of  Representatives  shall  not  exceed 
one  for  every  thirty  thousand;  but  each  State  shall  have 
at  least  one  Representative;  and  until  such  enumeration 
shall  be  made,  the  State  of  New  Hampshire  shall  be  en- 
titled to  choose  three,  Massachusetts  eight,  Rhode  Island 
and  Providence  Plantations  one,  Connecticut  five,  New 
York  six.  New  Jersey  four,  Pennsylvania  eight,  Delaware 
one,  Maryland  six,  Virginia  ten.  North  Carolina  five, 
South  Carolina  five,  and  Georgia  three. 

(6)  "When  vacancies  happen  in  the  representation  from 
any  State,  the  executive  authority  thereof  shall  issue 
writs  of  election  to  fill  such  vacancies. 

(7)  "The  House  of  Representatives  shall  choose  their 
Speaker  and  other  officers;  and  shall  have  the  sole  power 
of  impeachment." 

Decisions  as  to  direct  taxes. — (1)  The  9th  section 
of  Act  of  July  13th,   1866,  relating  to  the  internal 


Sec    2.]  DIRECT   TAXES.  11 

revenue,  which  provides  that  "every  iN'ational  banking 
association,  State  bank  or  State  banking  association 
shall  pay  a  tax  of  ten  per  centum  on  the  amount  of 
notes  of  any  State  bank,  or  State  banking  association, 
paid  out  by  them  after  a  certain  date  (Aug.  1st,  1866) 
does  not  lay  a  direct  tax,  within  the  meaning  of  that 
clause  of  the  Constitution  which  ordains  that  direct 
taxes  shall  be  apportioned  among  the  several  states  ac- 
cording to  their  respective  numbers."  Yeazie  Bank  v. 
Fenno,  8  Wall.,  533.  This  decision  discusses  the 
question,  what  are  "direct  taxes,"  and  holds  that  what 
was  meant  in  that  section  of  the  Constitution,  is  that 
where  a  gross  sum  as  a  tax  was  to  be  raised  from  all 
the  States,  the  amount  must  be  apportioned  among  the 
States  according  to  population.  Taxes  in  the  nature  of 
excise  (like  our  internal  revenue  taxes),  or  on  trades 
or  professions,  or  imposts  or  duties,  are  another  form 
of  taxation. 

(2)  Income  tax,  as  levied  upon  insurance  compan- 
ies, laid  by  Sees.  105  and  126  of  Act  of  June  20th, 
1864,  as  amended  by  Act  of  July  13th,  1866  (13  Stat, 
at  L.,  pp.  276,  283)  held  not  a  direct  tax  but  a  duty  or 
excise.     Pacific  Ins.  Co.  v.  Soule,  7  Wall.,  433. 

(3)  Taxes  on  real  estate  property  are  direct  taxes, — 
Hylton  v.  United  States,  3  Dall.,  171;  Springer  v. 
United  States,  102  U.  S.,  586.     In  the  Hylton  case  a 


12  CONSTITUTION  OF  UNITED  STATES.         [Art.  I, 

tax  was  levied  on  pleasure  carriages  and  was  held  not  a 
direct  tax.  In  the  Springer  case  the  court  held  that 
direct  taxes  meant  "only  capitation  taxes  and  taxes  on 
real  estate.''  See  Cooley's  Taxation,  p.  5,  n.  2 ;  Pom. 
Const.  Law,  157 ;  Sharswood's  Blackstone,  308,  n. 

(4)  Taxes  on  the  rents  or  income  of  real  estate  are 
direct  taxes  within  this  constitutional  provision,  and  a 
Federal  statute  imposing  taxes  of  this  nature  is  void. 
Pollock  V.  Farmers'  Loan  &  Trust  Co.,  157  TJ.  S.,  429 
(1895)  ;  Keheard,  158  U.  S.,  601. 

(5)  Taxes  on  personal  property  or  the  income  there- 
from are  direct  taxes,  and  the  Act  of  1894,  so  far  as  it 
falls  on  income  of  real  or  personal  property,  is  repug- 
nant to  the  Constitution;  and  the  whole  act  constitut- 
ing one  entire  scheme  of  taxation  is  void.  Pollock  v. 
Farmers'  Loan  &  Trust  Co.,  158  U.  S.,  601. 

(6)  A  "succession'  tax  imposed  by  Acts  of  June 
30th,  1864  (13  Stats,  at  L.,  pp.  285-287),  as  amended 
by  Act  of  July  13th,  1866  (14  Stats,  at  L.,  pp.  140, 
141),  on  every  "devolution  of  title  to  any  real  estate," 
was  held  not  to  be  a  "direct  tax,"  but  an  "impost  or 
excise"  and  constitutional  and  valid.  And  so,  the 
devise  of  an  equitable  interest  in  real  estate  is  such 
devolution  of  title.     Scholey  v.  Kew,  23  Wall.,  331. 

The  taxes  upon  legacies  and  distributive  shares  of  per- 
sonal property,  imposed  by  Act  of  June,  1898,  are  im- 


Sec.  3.]  THE    SENATE.  13 

posed  upon  the  transmission  or  receipt  of  such  inheri- 
tances, and  not  upon  the  right  of  the  State  to  regulate 
the  devolution  of  the  property  upon  death.  It  is  not  a 
direct  tax.     Knowlton  v.  Moore,  179  U.  S., . 

(7)  A  tax  upon  the  interest  on  municipal  bonds  is- 
sued by  State  municipalities  is  a  tax  upon  the  power  of 
the  State  and  its  instrumentalities  to  borrow  money, 
and  repugnant  to  the  Constitution.  Pollock  v.  Farm- 
ers' Loan  &  Trust  Co.,  157  U.  S.,  429 ;  158  id.,  601. 

(8)  A  tax  on  bank  circulation  is  not  a  direct  tax  and 
may  be  laid  without  apportionment.  Veazie  Bank  v. 
Tenno,  8  Wall.,  533,  546. 

THE  SEI^ATE. 

Sectioi^  3.  "(1)  The  Senate  of  the  United  States 
shall  be  composed  of  two  Senators  from  each  State,  chosen 
by  the  legislature  thereof,  for  six  years;  and  each  Sen- 
ator shall  have  one  vote. 

"  (2)  Immediately  after  they  shall  be  assembled  in  con- 
sequence of  the  first  election,  they  shall  be  divided  as 
equally  as  may  be  into  three  classes.  The  seats  of  the 
ISenators  of  the  first  class  shall  be  vacated  at  the  expira- 
tion of  the  second  year,  of  the  second  class  at  the  expira- 
tion of  the  fourth  year,  and  of  the  third  class  at  the  ex- 
piration of  the  sixth  year,  so  that  one-third  may  be 
chosen  every  second  year;  and  if  vacancies  happen  by 


14  CONSTITUTION    OP   UNITED    STATES.  [Art.  I^ 

resignation,  or  otherwise,  during  the  recess  of  the  legis- 
lature of  any  State,  the  executive  thereof  may  make  tem- 
porary appointments  until  the  next  meeting  of  the  legis- 
lature, which  shall  then  fill  such  vacancies. 

"(3)  No  person  shall  be  a  Senator  who  shall  not  have  at- 
tained to  the  age  of  thirty  years,  and  been  nine  years  a 
citizen  of  the  United  States,  and  who  shall  not,  when 
elected,  be  an  inhabitant  of  the  State  for  which  he  shall 
be  chosen. 

"(4)  The  Vice-President  of  the  United  States  shall  be 
President  of  the  Senate,  but  shall  have  no  vote,  unless 
they  be  equally  divided. 

"(5)  The  Senate  shall  choose  their  other  officers,  and 
also  a  President  pro  tempore,  in  the  absence  of  the  Vice- 
President,  or  when  he  shall  exercise  the  office  of  President 
of  the  United  States." 

IMPEACHMENT. 

"(6)  The  Senate  shall  have  the  sole  power  to  try  all 
impeachments.  When  sitting  for  that  purpose,  they  shall 
be  on  oath  or  affirmation.  When  the  President  of  the 
United  States  is  tried,  the  Chief  Justice  shall  preside;  and 
no  person  shall  be  convicted  without  the  concurrence  of 
two-thirds  of  the  members  present. 

"(7)  Judgment  in  cases  of  impeachment  shall  not  ex- 
tend further  than  to  removal  from  office  and  disqualifica- 
tion to  hold  and  enjoy  any  office  of  honor,  trust  or  profit 


Sec.  4.]  ELECTION    OF    SENATORS.  15- 

Tinder  the  United  States;  but  the  party  convicted  shall 
nevertheless  be  liable  and  subject  to  indictment,  trial, 
judgment  and  punishment,  according  to  law." 

ELECTION  OF  SENATORS. 

Section  4.  "The  times,  places,  and  manner  of  holding 
elections  for  Senators  and  Representatives  shall  be  pre- 
scribed in  each  State  by  the  legislature  thereof;  but  the 
Congress  may  at  any  time  by  law  make  or  alter  such  reg- 
ulations, except  as  to  the  places  of  choosing  Senators." 

(1)  In  making  regulations  for  the  election  of  Rep- 
resentatives, it  is  not  necessary  that  Congress  should 
assume  entire  and  exhaustive  control.  It  may  make 
entirely  new  regulations,  or  add  to  or  alter  or  modify^ 
those  made  by  the  State. 

(2)  Congress  may  impose  (a)  new  duties  on  the  of- 
ficers of  election,  or  (b)  additional  penalties  for  breach 
of  duty,  or  (c)  for  the  perpetration  of  fraud,  or  (d) 
provide  for  th^  attendance  of  oflScers  to  prevent  frauds 
and  see  that  the  elections  are  legally  and  fairly  con- 
ducted. 

(3)  There  can  be  no  conflict  between  the  power  of 
the  State  and  that  of  Congress,  because  the  power  of 
Congress  is  paramount. 

(4)  An  act  which  authorizes  deputy  marshals  to 
keep  the  peace  at  such  elections  is  not  unconstitutional. 


16  CONSTITUTION    OF    UNITED    STATES.  [Art.  I, 

(5)  Congress  can  compel  State  officers  to  obey  State 
laws  regulating  the  election  of  Representatives;  and 
wlien  so  compelled  bj  the  act  of  Congress,  the  violation 
of  the  State  law  may  be  a  violation  of  the  Act  of  Con- 
gress. 

(6)  Congress  can  vest  in  the  Circuit  Court  the  ap- 
pointment of  supervisors  of  election.  Ex  parte  Sie- 
bold,  100  U.  S.,  374,  382. 

(7)  This  section  of  Article  I,  adopts  the  State  quali- 
fications for  voting  as  the  Federal  qualification  for  the 
voter ;  but  the  right  to  vote  is  based  upon  the  Constitu- 
tion and  not  upon  the  State  law,  and  Congress  can  pass 
laws  for  the  free,  pure  and  safe  exercise  of  that  right. 
Ex  parte  Yarborough,  110  U.  S.,  651. 

The  right  to  vote  for  a  member  of  Congress  has  its 
foundation  in  the  Federal  Constitution,  and  a  case  in- 
volving this  right  where  the  damages  for  its  denial  are 
laid  at  $2,500  may  be  brought  in  the  Circuit  Court  of 
the  United  States ;  and  may  be  brought  directly  there- 
from to  the  Supreme  Court.  Wiley  v.  Sinkler,  179 
TJ.  S., (decided  Oct.  15,  1900). 

MEETIliG  OF  CONGEESS. 

"The  Congress  shall  assemble  at  least  once  in  every  year, 
and  such  meeting  shall  be  on  the  first  Monday  in  December, 
unless  they  shall  by  law  appoint  a  different  day." 


Sec.  5.]  POWERS    OF    TWO    HOUSES.  17 

POWER  OF  SENATE  AND  HOUSE. 

Section  5.  "(1)  Each  House  shall  be  the  judge  of 
the  elections,  returns,  and  qualifications  of  its  own  mem- 
bers, and  a  majority  of  each  shall  constitute  a  quorum  to 
do  business;  but  a  smaller  number  may  adjourn  from  day 
to  day,  and  may  be  authorized  to  compel  the  attendance 
of  absent  members,  in  such  manner,  and  under  such  pen- 
alties, as  each  House  may  provide." 

The  courts  of  a  State  have  no  jurisdiction  of  a  com- 
plaint for  perjury  on  testifying  before  a  notary  public, 
upon  a  contested  election  of  a  member  of  the  House  of 
Representatives  of  the  United  States.  Congress  has 
regulated  by  law  the  forms,  notices  and  manner  of  tak- 
ing depositions  in  contested  election  cases,  and  provided 
for  punishment  of  perjury  in  such  cases.  In  re  Loney, 
134  U.  S.,  372. 

"(2)  Each  House  may  determine  the  rules  of  its  pro- 
ceedings, punish  its  members  for  disorderly  behavior,  and, 
with  the  concurrence  of  two-thirds,  expel  a  member." 

(1)  Tlie  House  of  Bepresentatives  has  jurisdiction 
to  punish  for  contempt,  and  the  warrant  of  arrest  un- 
der the  hand  and  seal  of  the  Speaker,  attested  by  the 
Clerk,  directed  to  the  Sergeant-at-Arms,  is  legal  though 
it  does  not  show  on  its  face  on  what  evidence  it  was 
founded,  nor  set  forth  specifically  in  what  the  contempt 
consisted.     Anderson  v.  Dunn,  6  Wheat.,  204. 


18  CONSTITUTIOI^  OF  XJISriTED  STATES.  [Art.  I^ 

(2)  The  House  may  punish  its  own  members  for 
disorderly  conduct,  or  for  failure  to  attend  its  sessions^ 
and  may  fine  and  imprison  contumacious  witnesses,  but 
there  is  no  general  power  vested  in  either  House  to  pun- 
ish for  contempt.  The  imprisonment  of  Kilbourn  for 
refusal  to  answer  questions  in  an  investigation  rather 
judicial  than  legislative  in  its  nature  was  a  false  im- 
prisonment.    Kilbourn  v.  Thompson,  103  U.  S.,  168. 

(3)  While  Congress  cannot  divest  itself,  or  either 
of  its  Houses,  of  the  inherent  power  to  punish  for  con- 
tempt it  may  provide  that  contumacy  of  a  witness 
called  to  testify  before  it,  shall  be  a  misdemeanor 
against  the  United  States  punishable  by  the  Courts. 
In  re  Chapman,  166  U.  S.,  661. 

(4)  Congress  possesses  constitutional  power  to  en- 
act a  statute  to  enforce  the  attendance  of  witnesses  to 
enable  the  respective  bodies  to  discharge  their  legisla- 
tive functions.     Id. 

(5)  House  may  count  those  not  voting  to  determine 
whether  there  is  a  quorum.  The  Constitution  em- 
powers each  House  to  determine  its  rules  of  proceed- 
ing. It  may  not  by  its  rules  ignore  constitutional  re- 
straints or  violate  fundamental  rights,  and  there  should 
be  a  reasonable  relation  taken  between  the  mode  or 
method  established  of  proceeding  by  rule  and  the  re- 
sult sought.  The  rule  of  the  House  of  Kepresentatives 
of  the  61st  Congress  that  the  names  of  members  pres- 
ent who  do  not  vote  may  be  entered  on  the  journal  and 


Sec.  6.]  COMPENSATION.  19 

counted  in  determining  the  presence  of  a  quorum  does 
not  infringe  any  constitutional  right  and  is  a  valid  ex- 
ercise of  the  power  of  the  House  to  determine  its  own 
rules.     United  States  v.  Ballin,  144  U.  S.,  1. 

"(3)  Each  House  shall  keep  a  journal  of  its  proceed- 
ings, and  from  time  to  time  publish  the  same,  excepting: 
such  parts  as  may  in  their  judgment  require  secrecy;  and. 
the  yeas  and  nays  of  the  members  of  either  House  on  any 
question  shall,  at  the  desire  of  one-fifth  of  those  present^ 
he  entered  on  the  journal. 

"(4)  Neither  House,  during  the  session  of  Congress, 
shall,  without  the  consent  of  the  other,  adjourn  for  more 
than  three  days,  nor  to  any  other  place  than  that  in 
which  the  two  Houses  shall  be  sitting." 

COMPENSATIOIT. 

Section  6.  "(1)  The  Senators  and  Representatives 
shall  receive  a  compensation  for  their  services,  to  be  as- 
certained by  law,  and  paid  out  of  the  treasury  of  the 
United  States." 

Compensation  of  Representatives. — ^When  a  person 
is  elected  to  Congress  to  fill  a  vacancy  made  by  unseat- 
ing a  member,  who,  after  having  received  the  proper 
credentials,  having  been  placed  on  the  roll  and  drawn 
his  salary,  was  declared  not  elected,  the  succeeding 
Representative  is  entitled  to  compensation  only  from 
the  time  the  compensation  of  the  unseated  member 
ceased.     Page  v.  United  States,  127  U.  S.,  67. 


20  COW^STITUTIOI^  OF  UlSriTED  STATES.         [Art.  I, 

PRIVILEGE  FEOM  ARREST,  ETC. 

(2)  "They  shall,  in  all  cases,  except  treason,  felony, 
and  breach  of  the  peace,  be  privileged  from  arrest  during 
their  attendance  at  the  session  of  their  respective  Houses, 
and  in  going  to  and  returning  from  the  same;  and  (3)  for 
any  speech  or  debate  in  either  House,  they  shall  not  be 
questioned  in  any  other  place." 

(1)  Members  of  Congress  are  not  exempt  from  be- 
ing sued  in  the  District  of  Columbia  while  there  in  at- 
tendance upon  Congress.  Howard  v.  Citizens',  etc., 
.Co.,  12  App.  D.  C,  222. 

(2)  The  exemption  extends  to  service  of  process 
without  arrest.  Miner  v.  Markham,  28  Fed.  Rep., 
387;  Doty  v.  Strong,  1  Pin.  (Wis.),  84;  Anderson  v. 
Rountree,  1  Pin.  (Wis.),  115.  See  Hoppin  v.  Jenckes, 
8  R.  I.,  453;  Danton  v.  Halstead,  2  Clark  (Pa.),  450; 
Prentiss  v.  Com.  Bk.,  5  Rand.,  697 ;  Lewis  v.  Femen-' 
dorf,  2  Johns  Cases. 

(3)  In  the  following  cases  it  is  held  that  privilege 
from  arrest  does  not  extend  to  a  civil  suit.  Gentry  v. 
Griffith,  27  Tex.,  461 ;  Merrick  v.  Giddings,  McArthur 
&  M.,  8  Mo.,  55 ;  Catlett  v.  Morton,  4  Lit.  (Ky.),  122 ; 
Johnson  v.  Ofctt,  4  Met.  (Ky.),  20;  Rhodes  v.  Walsh, 
68  Minn.,  196. 

(4)  The  exemption  does  not  absolve  or  excuse  from 
obedience  to  a  subpoena  in  a  criminal  case.  United 
States  V.  Cooper,  4  Dall.  C.  Ct,  341. 

(5)  Where  a  member  of  Congress,  who  had  been  sur- 


Sec.  7.]  REVENUE  BILLS.  21 

rendered  bj  his  bail,  claimed  discharge  on  ground  of 
privilege,  and  it  was  proposed  by  the  counsel  for  the 
bail,  that  they  should  remain  responsible  for  surren- 
dering him  four  days  after  the  session,  the  court  ap- 
proved the  compromise  as  a  good  precedent.  Coxe  v, 
McClinechan,  3  DalL,  478. 

DISABILITY  TO  HOLD  OTHER  OFFICES. 

(3)  "No  Senator  or  Representative  shall,  during  the 
time  for  which  he  was  elected,  be  appointed  to  any  civil 
oflSice  under  the  authority  of  the  United  States,  which 
shall  have  been  created,  or  the  emoluments  whereof  shall 
have  been  increased  during  such  time;  and  no  person 
holding  any  office  under  the  United  States,  shall  be  a  mem- 
ber of  either  House  during  his  continuance  in  office." 

REVENUE  BILLS. 

Section^  7.  "(1)  AH  bills  for  raising  revenue  shall 
originate  in  the  House  of  Representatives ;  but  the  Senate 
may  propose  or  concur  with  amendments  as  on  other 
bills." 

"This  provision,"  says  Story,  "beyond  all  question 
is  borrowed  from  the  British  House  of  Commons,  of 
which  it  is  the  ancient  and  indisputable  privilege  and 
right  that  all  grants  of  subsidies  and  parliamentary 
aids  shall  begin  in  their  house."  The  general  reason 
is  that  the  supplies  are  raised  upon  the  body  of  the  peo- 
ple; but  Blackstone  points  out  that  a  large  part  of  the 
taxed  property  is  owned  by  the  Lords.  The  true  rea- 
son seems  to  be  that  the  Lords  are  a  permanent  body 


22  CONSTITUTIOl^  OF  UlS'ITED  STATES.         [Art.  I, 

created  by  the  pleasure  of  the  king,  and  the  Commons 
are  chosen  by  the  people.  There  seems  less  reason  for 
the  distinction  here,  and,  indeed,  the  provision  is  vir- 
tually evaded,  as  by  amendment  of  any  revenue  bill, 
the  Senate  may  "originate"  new  methods  of  raising 
revenue,  and  entirely  change  by  substitution  the 
methods  of  the  lower  House  for  methods  of  their  own. 
In  England  the  Lords  can  refuse  to  pass  but  cannot  al- 
ter or  amend.  What  are  bills  for  raising  revenue  ? 
This  is  confined  only  to  bills  for  the  levy  of  taxes  in  the 
strict  sense  of  the  word.  They  do  not  include  those 
for  establishing  the  post  office  and  mint  or  others  which 
incidentally  bring  in  revenue.  Story  on  Const.,  Sees. 
874-880. 

The  debates  in  the  Constitutional  Convention  show 
that  the  word  "Revenue  Bill"  was  to  be  used  only  in 
this  limited  sense.  The  clause  as  originally  intro- 
duced included  appropriations;  but  this,  after  careful 

debate,  was  stricken  out.  Tucker's  Const.,  pp.  446- 
467. 

APPROVAL    OR   VETO   OF   BILLS,    ETC. 

"(2)  Every  bill,  which  shall  have  passed  the  House  of 
Representatives  and  the  Senate,  shall,  before  it  become  a 
law,  be  presented  to  the  President  of  the  United  States; 
if  he  approve,  he  shall  sign  it;  but  if  not,  he  shall  re- 
turn it  with  his  objections  to  that  House  in  which  it  shall 
have  originated,  who  shall  enter  the  objections  at  large 
on  their  journal,  and  proceed  to  reconsider  it.     If  af- 


Sec.  7.]  VETO    OF    PRESIDENT.  23 

ter  such  reconsideration  two-thirds  of  that  House  shall 
agree  to  pass  the  bill,  it  shall  be  sent,  together  with  the 
objections,  to  the  other  House,  by  which  it  shall  likewise 
be  reconsidered,  and,  if  approved  by  two-thirds  of  that 
House,  it  shall  become  a  law.  But  in  all  such  cases  the 
votes  of  both  Houses  shall  be  determined  by  yeas  and 
nays,  and  the  names  of  the  persons  voting  for  and  against 
the  bill  shall  be  entered  on  the  journal  of  each  House 
respectively.  If  any  bill  shall  not  be  returned  by  the 
President  within  ten  days  (Sundays  excepted)  after  it 
shall  have  been  presented  to  him,  the  same  shall  be  a  law, 
in  like  manner  as  if  he  had  signed  it,  unless  the  Congress 
by  their  adjournment  prevent  its  return,  in  which  case  it 
shall  not  be  a  law. 

"(3)  Every  order,  resolution,  or  vote  to  which  the  con- 
currence of  the  Senate  and  House  of  Eepresentatives  may 
be  necessary  (except  on  a  question  of  adjournment)  shall  be 
presented  to  the  President  of  the  United  States;  and  be- 
fore the  same  shall  take  effect,  shall  be  approved  by  him, 
or,  being  disapproved  by  him,  shall  be  repassed  by  two- 
thirds  of  the  Senate  And  House  of  Eepresentatives,  ac- 
cording to  the  rules  and  limitations  prescribed  in  the  case 
of  a  bill." 

Neither  the  Constitution  nor  any  act  of  Congress  im- 
poses upon  the  President  the  duty  of  ajBBxing  a  date  to 
his  signature  to  a  bill.  Gardner  v.  The  Collector,  6 
Wall.,  499,  506. 


24                      COl^STITUTION  OF  UNITED  STATES.         [Art.  I, 
THE  POWER  OF  COIS^GEESS DUTIES  AND  IMPOSTS. 

Section  8.  "The  Congress  shall  have  power  (1)  to 
lay  and  collect  taxes,  duties,  imposts,  and  excises,  to  pay 
the  debts  and  provide  for  the  common  defense  and  general 
welfare  of  the  United  States; 

(2)  "But  all  duties,  imposts,  and  excises  shall  be  uni- 
form throughout  the  United  States." 

(1)  The  question  arose  under  this  power  upon  the 
Statute  of  1794  (1  U.  S.  Stats,  at  L.,  373)  by  which 
Congress  laid  a  tax  upon  carriages  for  the  conveyance  of 
persons.  The  country  was  then  poor.  The  owners  of 
carriages,  a  small  number  comparatively,  were  com- 
pelled to  pay  quite  an  onerous  tax  on  these  articles  of 
luxur^^.  Hylton  was,  as  appears,  a  manufacturer  of 
carriages  and  had  125  for  sale.  A  tax  was  levied  on 
them.  The  case  came  before  the  Supreme  Court  on 
the  question  whether  the  tax  was  direct  tax  or  a  duty. 
The  court  agreed  that  it  was  not  a  direct  tax.  Hylton 
V.  U.  S.,  3  Dallas,  171. 

(2)  The  case  of  McCuUoch  v.  State  of  Maryland,  4 
Wheat.,  316,  is  one  of  the  most  important  decisions 
made  by  the  Supreme  Court.  The  Congress  had  estab- 
lished and  chartered  the  United  States  Bank.  This 
was  the  object  of  much  opposition  of  a  political  char- 
acter. The  bank  had  established  a  branch  bank  in 
Maryland,  where  it  was  doing  business  under  its  Fed- 
eral charter.     Many  denied  the  power  of  Congress  to 


Sec.  8.]  TAXES,  DUTIES  AND  IMPOSTS.  25 

grant  such  a  charter.  The  Maryland  legislature 
passed  a  law  taxing  heavily  the  circulation  of  all  banks 
and  branches  thereof  doing  business  in  the  State,  and 
chartered  otherwise  than  by  State  authority.  The  suit 
was  brought  by  the  State  to  recover  in  debt  the  penal- 
ties imposed.  The  highest  court  of  Maryland  decided 
the  State  law  valid,  and  the  case  came  on  writ  of  error 
from  that  court  to  the  Supreme  Court.  The  tax  im- 
posed was  so  onerous  that  the  evident  intent  of  the  law 
was  to  drive  the  branch  bank  out  of  the  State.  The 
great  turning  point  in  the  argument  of  this  case  was 
whether  the  Congress  had  the  power  to  charter  such  a 
bank.  The  Chief  Justice's  opinion,  in  which  all  the- 
court  concurred,  is  one  of  the  great  leading  cases  on 
Constitutional  law.  It  lays  down  the  doctrine  of  im- 
plied powers  of  the  government  derived  from  the  power 
to  levy  and  collect  taxes,  borrow  money,  etc.  The  argu- 
ment or  reasoning  of  the  opinion  may  be  stated  thus : 

(a)  The  government  is  not  a  creature  of  the  State, 
but  of  the  people. 

(b)  Its  general  powers  include  those  of  levying 
taxes,  borrowing  money,  etc.,  etc. 

(c)  To  exercise  these  powers  it  may  establish  a  fis- 
cal system,  select  its  own  agencies,  and  to  carry  out. 
these  powers  it  derives  from  the  Constitution  all  inci- 
dental powers  necessary,  in  the  judgment  of  Congress^ 
for  that  purpose. 

(d)  A  bank  is  a  proper  agency  to  carry  out  the  pow- 
ers of  the  government  in  its  fiscal  policy.     It  is  a  meana 


26  CONSTITUTION  OF  UNITED  STATES.         [Art.  I, 

appropriate  and  plainly  adapted  and  not  inconsistent 
with  the  letter  and  spirit  of  the  Constitution ;  and  Con- 
gress may  charter  such  a  bank. 

(3)  The  power  of  Congress  to  levy  taxes  is  not  con- 
fined to  the  State,  but  is  co-extensive  with  the  territory 
of  the  United  States. 

(4)  But  the  State  can  tax  the  real  property  of  a 
United  States  bank  in  common  with  other  real  property 
of  the  bank.  J 

(5)  The  bank  and  its  issues  of  currency  being  a 
necessary  and  proper  agency  of  the  Federal  govern- 
ment, the  State  legislatures  can  not  tax  them  for  the 
power  to  tax  is  the  power  to  destroy  by  burdensome  or 
exhaustive  taxation.  If  the  State  can  tax  at  all  it  caii 
tax  put  of  existence.  If  it  can  tax  one  agency  of  the 
Federal  government  it  can  tax  another,  and  thus  crip- 
ple the  general  government  by  destroying  its  agencies 
and  means  of  exercising  its  powers. 

(6)  The  State  law,  therefore,  which  taxed  the  circu- 
lation of  the  branch  of  the  United  States  bank  was  un- 
constitutional and  void. 

This  decision  more  effectually  than  any  other  single 
decision  established  the  Federal  government,  put  an 
€nd  to  the  State  rights  opinions  then  too  prevalent  that 
the  States  could  thwart  and  cripple,  under  pretence  of 
co-ordinate  sovereignty,  the  sovereign  power  of  the 
United  States.  It  is  followed  in  Osborn  v.  U.  S. 
Bank,  9  Wheat.,  Y38. 

Then  followed  the  decision  that  stock  issued  for 


Sec.  8.]  TAXES,  DUTIES  AND  IMPOSTS.  27 

loans  to  the  government  of  the  United  States  is  not  lia- 
l)le  to  taxation  by  a  State  or  by  municipal  authority, 
under  State  law.  All  resting  on  the  principle  of  Mc- 
Culloch  V.  Maryland,  that  the  states  could  not  tax  the 
agencies  or  instrumentalities  by  which  the  Federal  gov- 
ernment derived  their  revenues.  Weston  v.  Charles- 
ton, 2  Peters,  449. 

After  the  Civil  War  had  strained  to  the  utmost  the 
resources  of  the  nation  and  compelled  it  to  issue  United 
States  treasury  notes,  or  "greenbacks,"  it  was  decided 
that  they  could  not  be  taxed  by  State  authority.  If  a 
man  at  time  of  assessment  of  taxes,  had  $100,000  in 
U.  S.  treasury  notes,  they  could  not  be  taxed,  for 
the  power  to  tax  implies  the  power  to  destroy,  and  a 
hostile  State  might  have  taxed  them  so  heavily  as  to 
destroy  their  value  and  impair  their  efficacy  as  a  cir- 
culating medium.  Mitchell  v.  Leavensworth  Co.,  91 
U.  S.,  206.  In  this  case,  the  plaintiff  converted  his 
bank  balance  into  treasury  notes  on  the  day  as  of  which 
assessment  was  made.  He  filed  a  bill  to  restrain  the 
collection  of  the  tax,  but  as  his  conduct  was  inequitable 
equity  refused  to  aid  him. 

On  the  same  principle  certificates  of  indebtedness 
issued  by  the  United  States  can  not  be  taxed  by  the 
States.     The  Banks  v.  The  Mayor,  7  Wall.,  16,  26. 

The  United  States  was  obliged  to  issue  vast  amounts 
of  bonds  to  carry  on  the  war  for  the  Union.  It  was 
desired  that  people  of  capital  should  take  these  bonds 


28  CONSTITUTION^  OF  UI^ITED  STATES.         [Art.  1, 

and  lend  their  money  to  the  government.  The  policy 
was  to  enlist  to  the  support  of  the  governmefnt  the 
capital  of  the  country,  as  well  as  its  patriotic  senti- 
ment. The  bonds  thus  taken  and  held  by  holders  resi- 
dent in  the  United  States  were  in  a  series  of  decisions 
held  to  be  exempt  from  State  taxation.  Society  for 
Savings  v.  Coite,  6  Wall.,  594 ;  jSTew  York  v.  Com'rs  of 
Taxes,  3  Black,  620;  \^Bank  Tax  Case,"  2  Wall.,  200; 
Provident  Ins.  v.  Mass.,  6  Wall.,  611.  The  Supreme 
Court  went  further  and  held  that  capital  stock  of  a 
corporation,  if  that  stock  consisted  in  public  securities^ 
was  exempt.  Prov.  Ins.  v.  Mass.,  6  Wall.,  611. 
Thus,  where  an  insurance  corporation  had  as  its  capital 
stock  a  large  block  of  United  States  bonds,  though  it 
could  not  tax  the  bonds  as  bonds,  the  State  undertook 
to  tax  them  as  capital  stock,  thus  doing  indirectly  what 
it  was  forbidden  to  do  directly.  The  Supreme  Court 
of  the  United  States  upheld  the  public  credit  in  what 
might  be  termed  the  judicial  war  to  uphold  the  Union 
against  the  loyal  States.  They  insisted  on  the  right  to- 
tax  the  property  represented  by  the  obligations  of  the 
government  in  various  forms  owed  to  its  citizens.  The 
Supreme  Court  denied  this  power  as  repugnant  to  the 
powers  of  the  general  government,  for  if  the  right  ta 
tax  exists  at  all  it  is  a  right  "that  acknowledges  no 
limits."  It  is  the  power  to  take  all  as  well  as  a  part. 
We  shall  consider  later  the  subject  of  the  !N"ational 
Banks,  and  the  cases  that  arose  under  the  law  creating 
and  regulating  them.     See  post^  p.  36. 


Sec.  8.]  TAXES,  DUTIES  AIs'D  IMPOSTS.  29 

The  uniformity  required  by  the  Constitution  (Art. 
I,  Sec.  8)  is  not  an  intrinsic  uniformity  relating  to  the 
inherent  character  of  the  tax  as  respects  its  operation 
in  individuals,  but  is  merely  a  geographical  uniform- 
ity. It  means  that  the  same  plan  and  method  must 
be  operative  throughout  the  United  States.  Knowlton 
V.  Moore,  179  U.  S.,  . 

Bight  of  States  to  tax  salaries  of  the  officers  of  the 
United  States,  etc. — The  question  arose  quite  early 
whether  an  officer  of  the  United  States  could  be  taxed 
for  his  salary.  The  Supreme  Court  held  that,  when  a 
State  law  acts  upon  the  instruments,  emoluments,  and 
persons,  which  the  United  States  may  use  and  employ, 
it  is  repugnant  to  the  Constitution  of  the  United  States, 
which  is  the  supreme  law  of  the  land.  Dobbins  v. 
Erie  Co.,  16  Pet.,  435. 

Officers  may  distrain  and  sell  property  to  collect 
taxes. — In  the  exercise  of  its  power  "to  levy  and  col- 
lect taxes,  duties,  imposts  and  excises,"  Congress  may, 
to  enforce  payment  of  taxes  so  levied,  authorize  the  dis- 
traint and  sale  of  either  real  or  personal  property. 
This  is  not  depriving  the  owner  of  his  property  without 
due  process  of  law.  Springer  v.  U.  S.,  102  U.  S.,  586. 
In  this  case  A's  lands  were  levied  on  and  sold  because 
he  would  not  pay  his  income  tax,  he  having  no  leviable 
goods  the  marshal  could  find,  the  officer  sold  his  entire 
lots  including  homestead.  Held,  That  the  sale  was 
regular,  though  by  a  State  law  the  homestead  would  be 
sold  separately  and  last. 


30  CONSTITUTIOJS'  OF  UNITED  STATES.         [Art.  I, 

Tax  on  distiller  s  output  construed  and  upheld  as  ex- 
cise tax  and  constitutional.  U.  S.  v.  Singer,  15  Wall.^ 
111. 

Tax  on  foreign-held  bonds. — A  railroad  company  of 
Pennsylvania  issued  a  large  amount  of  l)onds.  They 
were  held  largely  in  foreign  countries.  The  State  leg- 
islature thought  it  an  easy  way  to  raise  State  revenue 
to  tax  the  honds  and  require  the  railroad  treasurer  to 
pay  into  the  State  treasury  5  per  cent,  of  the  interest 
which  accrued  on  these  bonds.  In  the  case  of  R.  R. 
Co.  V.  Penn.,  15  Wall.,  300,  it  was  held  that  this  law 
was  void.  The  indebtedness  owned  by  the  railroad 
company  was  not  property  in  the  State  of  Pennsyl- 
vania. The  property  was  where  the  bond  was  held. 
By  a  divided  court  the  tax  was  held  invalid.  It  im- 
paired the  obligation  of  the  contract,  and  the  real  point 
is  that  it  attempts  to  tax  within  a  State  property  that  is 
beyond  its  borders  and  outside  of  its  jurisdiction. 

The  United  States  can  tax  in  such  cases. — But  while 
the  power  was  denied  to  the  States  to  tax  the  interest  on. 
railroad  bonds,  the  United  States  can  impose  such 
taxes.     U.  S.  v.  R.  R  Co.,  17  Wall.,  322. 

The  States  can  tax  the  property  of  a  railroad  com- 
pany chartered  by  the  United  States;  but  it  can  not  tax 
its  operations.     R.  R.  Co.  v.  Peniston,  18  Wall.,  5. 

Taxing  railroads,  and  their  franchises. — Congress 
can  make  contracts  with  individuals,  or  corporations, 
for  services  to  th^  government,   and  may  exempt  in 


Sec.  8.]  TAXES,  DUTIES  AND  IMPOSTS.  31 

discretion  the  agencies  employed  in  such  service  from 
State  taxation  which  will  impede  the  performance  of 
the  service;  but  in  the  absence  of  positive  legislation 
prohibiting  such  taxation  States  may  tax  the  property 
of  such  class  in  such  service.     Thomson  v.  R.  R.  Co., 

9  Wall.,  579.  This  case  involved  the  taxation  by 
State  authority  of  the  Union  Pacific  and  other  rail- 
roads and  by  the  United  States. 

Taxing  the  notes  of  State  hanhs. — The  Act  of  July 
13,  1866  (14  Stat,  at  L.,  146),  required  every  ISTational 
bank,  State  bank  or  State  banking  association  to  pay 
a  tax  of  10  per  cent,  on  all  notes  of  State  banks  paid  out 
by  it.  This  law  was  intended  to  drive  State  bank 
notes  out  of  circulation  and  force  the  bankers  to  or- 
ganize as  ISTational  banks,  or  at  least  give  National 
banks  and  U.  S.  Treasury  notes  the  whole  field  of  cir- 
culation. It  was  held,  as  before  noted,  that  this  was  a 
legitimate  mode  of  Federal  taxation  and  not  a  direct 
tax.  Veazie  Bank  v.  Fenno,  8  Wall.,  533.  This  case 
arose  in  this  way.  The  bank  paid  out  State  bank 
notes.     On  these  the  Federal  authorities  assessed  the 

10  per  cent,  tax  and  were  about  to  make  a  distraint  to 
collect.  The  bank  paid  under  protest  and  then  sued  to 
get  back  the  money,  on  the  claim  that  the  law  imposing 
the  tax  was  unconstitutional. 

Tax  on  salaries  of  State  officers. — In  the  stress  of 
the  war  Congress  taxed  everything  it  could  "lay  hands 
on."     One  statute  (June  30,  1864,  13  Stat,  at  L.,  281) 


32  COIS^STITUTION  OF  UN^ITED  STATES.         [Art.  I, 

provided  a  tax  upon  gains,  profits  and  income  of  every 
person,  residing  in  the  United  States,  whether  derived 
from  any  kind  of  property,  rents,  interests,  dividends 
or  salaries  or  from  any  profession,  trade  or  employ- 
ment. The  tax  was  5  per  cent,  on  all  over  $1,000. 
Judge  Day  paid  the  tax  under  protest  and  sued  to  col- 
lect or  to  recover  back  the  money.  The  Supreme  Court 
held  that  it  was  incompetent  to  levy  a  tax  upon  a  ju- 
dicial officer  of  a  State.  The  case  followed  Dobbins  v. 
Erie  Co.,  16  Pet.,  435,  and  held  that  it  was  not  within 
the  power  of  Congress  to  cripple  the  State  governments 
by  taxing  salaries;  because,  if  so,  Congress  could  take 
all  the  salaries  and  thus  break  down  the  State  adminis- 
tration.    Collector  v.  Day,  11  Wall.,  113. 

State  taxation  of  franchises  granted  hy  Congress. — 
A  statute  of  California  provided  for  taxing  the  prop- 
erty and  also  the  franchise  of  the  railroad  companies, 
which  had  been  conferred  by  the  United  States.  The 
court  held  that  the  taxing  of  franchises  conferred  by 
the  United  States  was  repugnant  to  the  Constitution 
and  void.     California  v.  E.  K.  Co.,  127  U.  S.,  1. 

License  tax  cases. — An  interesting  question  arose, 
when  the  Act  of  June  30,  1864  (13  Stats,  at  L.,  223) 
required  retail  liquor  dealers  to  pay  a  license  tax  to  the 
United  States,  as  a  means  of  raising  revenue.  Penal- 
ties were  imposed  for  failure  to  take  out  such  license. 
This  law  was  questioned  as  imposing  a  tax  and  grant- 
ing a  license  to  do  things  which  the  State  laws  had  in 


Sec.  8.]  TAXES,   DUTIES   AND  IMPOSTS.  33 

some  of  the  States  forbidden.     It  was  held,  however, 
by  the  Supreme  Court  that : 

(1)  Where  the  State  laws  permitted  such  sale  of 
liquors  (and  lottery  tickets)  the  United  States  could 
impose  a  special  tax. 

(2)  Where  the  States  did  not  permit  such  sales,  the 
[Federal  law  could  not  override  the  State  law,  by  levy- 
ing such  tax  and  that  paying  such  Federal  tax  did  not 
legalize  the  business. 

(3)  The  power  of  the  Federal  government  to  tax  a 
licensed  business,  does  not  impair  the  power  of  the 
State  to  control  and  regulate  any  business  wholly 
within  its  boundaries.  License  Tax  Cases,  5  Wall., 
462. 

(4)  A  man  indicted  for  selling  liquor  contrary  to 
State  law  can  not  plead  as  a  bar  that  he  had  paid  a  li- 
cense tax  to  the  government.     Id. 

(5)  That  States  may  regulate  or  forbid  the  sale  of 
intoxicating  liquors  within  their  respective  borders. 
Pervear  v.  Com.  of  Mass.,  5  Wall.,  475. 

Regulation  of  pilots  and  pilotage. — The  State  of 
Pennsylvania  passed  a  law  regulating  pilots  and  pilot- 
age, requiring  every  vessel  arriving  from  or  bound  to  any^ 
foreign  port  or  place  to  receive  a  pilot,  pay  fees  there* 
for,  under  penalty,  and  to  pay  half  pilot  fees  to  a  so- 
ciety for  the  relief  of  old  and  decayed  pilots,  etc. 

This  law  was  held  not  void,  as  the  grant  of  power  to 
3 


34  COISrSTITUTION  OF  UNITED  STATES.         [Art.  I, 

regulate  commerce  did  not  prevent  the  State  from  regu- 
lating pilots.  Such  State  regulations  may  be  made, 
without  conflict  with  the  power  of  Congress,  where  Con- 
gress has  not  prescribed  otherwise.  Cooley  v.  Wardens 
of  Port  of  Philadelphia,  12  How.,  299.  See  post, 
p.  51. 


POWER  TO  BORROW  MONEY. 

The  Congress  shall  have  power,     *     *     * 
"To  borrow  money  on  the  credit  of  the  United  States." 

Notes. — "This  power,"  says  Story,  "seems  indis- 
pensable to  the  sovereignty  and  existence  of  a  N^ational 
government."     Story  on  Const,  5th  Ed.,  Sec.  1054. 

Federal  decisions  hearing  on  the  power  to  borrow 
money. — (1)  This  power  to  borrow  money  i%  entirely 
beyond  the  interference,  legislation  and  dominion  of 
the  States.  Hence,  the  State  can  not  tax  the  security 
by  which  the  debt  is  evidenced.  Bank  Tax  Cases,  2 
Wall.,  200.  It  was  here  held  that  a  law  levying  a  tax 
on  the  valuation  of  the  capital  stock  paid  in,  when  that 
stock  or  property  consisted  in  stocks  of  the  United 
States,  is  void.  The  granting  of  this  power  is  incom- 
patible with  any  restraining  or  controlling  power; 
and  the  declaration  of  supremacy  in  the  Constitution  is 
a  declaration  that  no  such  restraining  or  controlling 


Sec.  8.]  POWER  TO  BORROW  MONEY.  35 

power  exists.  A  tax  on  stock  of  the  United  States  held 
by  an  individual  citizen  of  a  State  is  a  tax  upon  the 
power  to  borrow  money  on  the  credit  of  the  United 
States  and  can  not  be  levied  by  a  State.  Weston  v. 
City  Council,  2  Pet.,  449.  , 

(2)  In  issuing  the  bonds  of  the  Federal  government 
they  were  "exempt  from  taxation  by  or  under  State 
authority."  (Act  June  3,  1864.)  But  the  act  provid- 
ing K^ational  currency  and  for  IsTational  banks,  pro- 
vided that  the  shares  of  stock  in  such  bank  might  be 
taxed  by  the  States  (See  K.  S.,  U.  S.,  Sec.  5219)  un- 
der certain  limitations.  The  statute  of  New  York 
(Mar.  9,  1865)  attempted  to  tax  the  shares  of  N'ational 
banks,  where  it  provided  no  taxation  on  the  shares  of 
stock  in  State  banks.  This  was  held  void  as  it  taxed  the 
shares  of  stock  in  ]^ational  banks  differently  from  what 
other  bank  shares  were  taxed.  This  was  repugnant  to 
the  41st  section  of  the  J^ational  banking  law  which  pro- 
vided that  the  tax  imposed  under  the  laws  of  any  State 
upon  such  shares  "shall  not  exceed  the  rate  imposed 
upon  the  shares  in  any  of  the  banks  organized  under 
the  authority  of  the  State,  where  such  association  is 
located."     Van  Allen  v.  Assessors,  3  Wall.,  573. 

(3)  The  State  of  J^ew  York  then  tried  to  adapt  its 
laws  to  harmonize  with  the  Federal  law  so  as  to  tax  Na- 
tional bank  shares  "but  not  at  greater  rate  than  is  as- 
sessed upon  other  moneyed  capital  in  the  hands  of  in- 
dividuals in  this  State."     The  majority  opinion  of  the 


36 


COIS-STITUTIOlSr  OF  UNITED  STATES.  [Art.  I, 


Supreme  Court  held  this  law  to  be  valid.     People  v. 
Commissioners,  4  Wall.,  244. 

The  tax  on  the  shares  of  the  stockholders  is  not  the 
same  thing  as  the  tax  upon  the  capital  of  a  bank. 
Where  a  State  law  taxes  the  shares  in  a  National  bank 
but  does  not  tax  the  shares  but  the  capital  of  State  banks 
the  law  is  void.  Affirming  Van  Allen  v.  Assessors,  3 
Wall.,  573 ;  Bradley  v.  People,  4  Wall.,  459. 

(4)  Certificates  of  indebtedness  issued  by  the  gov- 
ernment for  supplies,  can  not  be  taxed  by  States ;  such 
taxation  is  an  interference  with  the  power  to  borrow 
money,  etc.     Banks  v.  Mayor,  7  Wall.,  16. 

(5)  United  State's  treasury  notes  are  obligations  of 
the  government  and  can  not  be  taxed  by  the  States. 
Banks  V.  Supervisors,  7  Wall.,  27. 

Power  of  Congress  to  make  the  Treasury  notes  legal 
tender. — It  was  held  in  Hepburn  v.  Griswold,  8  Wall., 
603  (decided  in  1869),  that  the  legal  tender  acts  passed 
during  the  war,  were  unconstitutional.  This  opinion 
was  given  by  Chief  Justice  Chase,  the  man  who  as  Sec- 
retary of  the  Treasury  had  brought  forward  the  legal 
tender  scheme.  But  this  decision  threatened  such  dire 
disaster  to  the  business  interests  of  the  country  that, 
after  the  personnel  of  the  court  had  been  changed  by 
death  and  new  appointments,  the  question  was  raised 
again  and  solemnly  argued  in  1870 ;  and  it  was  held  in 
Knox  V.  Lee  (Legal  Tender  Cases),  12  Wall.,  467,  that 
the  legal  tender  acts  were  constitutional;  and  applied 


Sec.  8.]  REGULATIOI^   OF   COMMERCE.  37 

to  contracts  made  before  their  passage  as  well  as  after. 
In  this  opinion  the  Court  lay  much  stress  on  its  being 
a  "war  power/'  as  if  justified  only  by  the  dire  necessi- 
ties of  the  nation's  struggle  for  its  life.  But  later  in 
Juilliard  v.  Greenman,  110  U.  S.,  421,  it  was  held  that 
this  power  to  make  United  States  Legal  Tender  'Notes 
legal  tender  for  private  debts  could  be  constitutionally 
exercised  as  well  in  time  of  peace  as  of  war.  These  de- 
cisions have  been  much  criticised  by  many  of  the  ablest 
lawyers ;  but  it  is  not  likely  that  the  court  will  ever 
oscillate  back  to  the  other  and  earlier  view. 

Tax  on  telegraph  messages. — No  State  can  impose 
a  tax  upon  telegraph  messages  sent  into  or  out  of  the 
State,  or  upon  the  receipts  therefrom,  nor  on  a  gross 
amount  which  includes  such  receipts,  as  this  is  a  reg- 
ulation of  commerce.  Western  Union  Telegraph  Com- 
pany V.  Alabama,  132  U.  S.,  472. 


KEGULATIOIT  OF  COMMERCE. 


The  Congress  shall  have  power. 


•X-       *       * 


"To  regulate  oommerce  with  foreign  nations,  and  among 
the  several  States." 


"This  power  is  vital  to  the  prosperity  of  the  Union; 
and  without  it  the  government  would  scarcely  deserve 
the  name  of  a  National  government.     It  would  stand 


38  CONSTITUTION  OF  UNITED  STATES.         [Art.  I, 

as  a  mere  shadow  of  sovereignty,  to  mock  our  hopes  and 
involve  us  in  a  common  ruin."  Story  on  Const.,  5  Ed., 
sec.  1057. 

What  is  meant  hy  commerce? — This  term  means 
traffic ;  but  it  is  something  more ;  it  is  intercourse.  It 
comprehends  navigation,  and  the  laws  regulating  navi- 
gation are  founded  on  the  power  to  regulate  commerce. 
Gibbons  v.  Ogden,  9  Wheat.,  189. 

The  great  leading  case  on  this  subject  is  Gibbons  v. 
Ogden,  9  Wheat.,  189.  The  facts  out  of  which  the  case 
arose  are  these :  The  legislature  of  -N^ew  York  granted 
to  Livingston  and  Fulton  the  exclusive  navigation  of 
all  of  the  waters  within  the  jurisdiction  of  that  State, 
with  boats  propelled  by  fire  or  steam,  for  a  term  of 
years,  and  authorized  the  Chancellor  to  restrain  by  in- 
junction any  person  from  navigating  those  waters  with 
such  boats.  Livingston  and  Fulton  assigned  to  Ogden 
their  right  to  navigate  the  waters  between  places  in 
"New  Jersey  and  the  city  of  'New  York.  Gibbons  had 
two  steamers  and  ran  on  the  lines  granted  to  Ogden  by 
Livingston  and  Fulton.  The  Chancellor  enjoined  Gib- 
bons from  this  violation  of  Ogden's  exclusive  right. 
From  the  decision  affirming  the  Chancellor's  decision, 
by  the  Court  of  Errors  of  New  York  (17  Johns.,  486) 
Gibbons  carried  the  case  by  writ  of  error  to  the  Supreme 
Court  of  the  United  States.  Here  was  a  clear  question 
raised, — the  power  to  regulate  commerce  by  the  State 
as  against  the  power  to  regulate  commerce  by  the  Con- 


Sec.  8.]  REGULATION   OF   COMMERCE.  39 

gress.  The  Court  held:  (1)  That  the  power  to  regu- 
late commerce  was  exclusive  of  any  concurrent  power 
in  the  State,  when  Congress  exercised  its  power,  how- 
ever, it  might  be  as  to  the  State  regulations  in  the  ab- 
sence of  actual  exercise  of  the  power  by  Congress. 
(2)  That  such  power  of  Congress  does  not  stop  at  the 
external  boundary  of  a  State.  (3)  That  the  law  o£ 
!N'ew  York  granting  this  exclusive  right  was  inopera* 
tive  as  against  the  laws  of  the  United  States;  and  that 
the  !N'ew  York  Chancellor  could  not  enjoin  Gibbons 
from  plying  his  vessels. 

Commerce  includes  an  intercourse  of  persons  as  well 
as  merchandise.     Passenger  Cases,  7  How.,  283. 

The  poiuer  to  regulate  commerce  with  foreign  no- 
tions. — What  is  meant  by  "regulate''  ?  The  power  to 
regulate  is  the  power  to  prescribe  the  rule  by  which 
commerce  is  governed.  Gibbons  v.  Ogden,  9  Wheat., 
196.  It  is  to  prescribe  the  conditions  on  which  it  shall 
be  conducted.  Gloucester  Ferry  Co.  v.  Pennsylvania, 
114  U.  S.,  196.  It  includes  navigation,  and  the  power 
to  pass  navigation  laws  (Gibbons  v.  Ogden,  9  Wheat., 
190,  191)  both  on  the  ocean  and  within  the  limits  of 
every  State,  so  ,f  ar  as  it  is  commerce  among  the  States 
or  with  the  Indian  tribes  (Id.,  1),  and  control  of  all 
navigable  waters  in  a  State  which  are  accessible  from 
any  other  State.  Gilman  v.  Philadelphia,  3  Wall., 
T13.  Cooley  v.  Board  of  Wardens,  12  How.,  292,  315, 
316. 


40  COIS'STITUTION  OF  UlS^ITED  STATES.         [Art.  I, 

It  comprehends  the  power  to  impose  an  embargo. 
Gibbons  v.  Ogden,  9  Wheat,  191,  192. 

Passenger  cases.  Right  of  the  State  to  regulate 
head  money. — The  statute  ,of  ^N'ew  York,  which  im- 
posed a  penalty  upon  the  master  of  a  vessel  arriving 
from  a  foreign  port,  who  neglected  to  report  to  the 
mayor  or  recorder  an  account  of  his  passengers,  giving 
names,  ages,  place  of  birth,  last  legal  settlement  and 
occupation  was  held  not  a  regulation  of  commerce,  but 
a  police  regulation,  and  not  contrary  to  the  Federal 
Constitution.  City  of  'New  York  v.  Miln,  11  Pet., 
102. 

A  statute  of  jSTew  York,  which  required  the  masters 
of  vessels  to  pay  a  certain  sum  to  a  State  officer,  on  ac- 
count of  every  passenger  brought  from  a  foreign  coun- 
try into  the  State  or  before  landing  any  alien  passen- 
gers is  void.  It  interferes  with  commerce  and  inter- 
course. Passenger  Cases,  7  How.,  286.  The  decision 
in  the  case  of  :N'ew  York  City  v.  Miln,  11  Pet.,  102,  to 
the  effect  that  the  States  might  regulate  commerce 
where  the  Congress  had  not  acted  upon  the  matter  was 
regarded  as  a  dangerous  doctrine.  Judge  Story 
strongly  dissented  and  expressed  grave  fears  at  the  ten- 
dency of  the  Court,  under  its  changed  personality,  to 
overturn  the  work  of  Marshall  and  his  associates.  But 
in  the  Passenger  Cases,  7  How.,  283,  the  ground  was 
by  a  majority  of  the  Court  abandoned.  The  Court  in 
later  decisions  held  that  the  regulation  of  foreign  and 


Sec.  8.]  REGULATION   OF   COMMERCE.  41 

interstate  commerce  is  exclusively  within  the  control  of 
Congress  and  that;no  State  can  attempt  a  regulation  of 
such  commerce,  even  though  there  be  no  law  of  Con- 
gress with  which  it  might  conflict.  Wabash,  etc.,  Co. 
V.  Illinois,  118  U.  S.,  557;  Fargo  v.  Michigan,  121 
U.  S.,  230.  The  doctrine  of  these  cases  (7  How.,  283) 
has  been  affirmed  in  Crandall  v.  ^N'evada,  6  Wall.,  40 ; 
State  Tonnage  Tax  Cases,  12  Wall.,  213;  Ward  v. 
Maryland,  12  Wall.,  163;  State  Freight  Tax  Cases,  15 
Wall.,  275 ;  Morgan  v.  Parham,  16  Wall.,  475 ;  Hen- 
derson V.  'New  York,  92  U.  S.,  269 ;  Kailroad  Co.  v. 
Husen,  95  U.  S.,  465;  Hall  v.  DeCuir,  95  U.  S.,  516; 
Cook  V.  Pennsylvania,  97  U.  S.,  571 ;  Telegraph  Co.  v. 
Texas,  105  U.  S.,  465;  People  v.  Compagnie  Gen. 
Transatlantique,  107  U.  S.,  59 ;  Walling  v.  Mich.,  116 
U.  S.,  455;  Bobbins  v.  Shelby  Taxing  Dist,  120  U.  S., 
493;  Bowman  V.  Chicago,  etc.,  Ry.  Co.,  125  U.  S., 
492 ;  Leisy  v.  Hardin,  135  U.  S.,  147.  These  cases  are 
all  cited  in  these  notes  and  the  point  of  each  given. 
See  also  E'otes  to  U.  S.  Eeports,  Vol.  4,  p.  709,  et  seq. 

1.  The  case  of  City  of  iS^ew  York  v.  Miln,  11  Pet., 
102,  decided  no  more  than  that  the  requirement  that 
a  master  of  a  vessel  should  furnish  a  catalogue  of  the 
passengers,  with  a  description  of  names,  ages,  occupa- 
tions and  places  of  birth  and  last  legal  settlement  was 
a  police  regulation. 

2.  But  the  imposition  of  a  tax  on  each  passenger 
landed  is  not  such  a  police  regulation,  but  an  invasion, 
of  the  power  of  Congtess  to  regulate  commerce. 


42  CONSTITUTION  OF  UNITED  STATES.         [Art.  I, 

3.  Where  the  State  law  imposes  an  almost  impossi- 
ble condition  on  the  ship  master  ag  a  prerequisite  to 
landing  passengers,  withe  the  alternative  of  paying  a 
small  sum  of  money  for  each  one  of  them,  this  is  a  reg- 
ulation of  commerce  which  the  State  has  no  power  to 
make,  whatever  it  may  be  called. 

4.  l^or  does  it  help  the  State  law  that  the  penalty  it 
imposes  does  not  accrue  until  24  hours  after  the  arrival 
of  the  vessel.     Passenger  Cases,  7  How.,  286. 

The  power  of  Congress  extends  to  acts  done  on  land 

which  interfere  with  or  obstruct  commerce  or  naviga- 

* 

tion  with  foreign  nations  and  among  the  States,  and 
it  may  pass  laws  punishing  theft  of  goods  belonging  to 
vessels  in  distress,  though  the  goods  may  be  above  high 
water  mark  on  the  land.  4  Stat,  at  L.,  116.  Held, 
SL  valid  law  in  United  States  v.  Combs,  12  Pet.,  72. 

The  power  to  regulate  commerce  granted  to  Con- 
gress is  not  confined  to  the  instrumentalities  known 
and  used  at  the  time  of  its  adoption,  but  ke6ps  pace 
with  the  progress  of  the  country  and  the  new  develop- 
ments. The  Act  of  Florida,  1866,  granting  to  the 
Pensacola  Telegraph  Co.  exclusive  right  to  maintain 
lines  of  electric  telegraph  is  in  conflict  with  the  Act  of 
Congress,  July  24,  1866  (14  Stat.,  221,  K.  S.,  sec. 
5263,  et  seq.),  entitled,  "An  act  to  aid  in  construction 
of  Telegraph  Lines  and  secure  to  the  government  the 
use  of  the  same  for  postal,  military  and  other  pur- 
poses," and  is  void.     It  also  conflicts  with  the  power  of 


Sec.  8.]  REGULATIOI^   OF   COMMERCE.  43 

Congress  to  establish  post  roads.  Pensacola  Tele- 
graph Co.  V.  Western  Union  Tel.  Co.,  96  U.  S.,  1. 

Congress  may  regulate  immigration, — The  act  which 
imposes  upon  owners  of  vessels,  who  shall  bring  pas- 
sengers, not  citizens  of  this  country,  a  duty  for  each 
passenger  is  a  valid  act.  Head  Money  Cases,  112  U.  S., 
680. 

Powers  of  Congress  over  commerce. — In  executing 
the  power  to  regulate  commerce  Congress  may  employ 
as  instrumentalities,  corporations  created  by  it  or  by 
the  States  and  may  sanction  the  taking  of  private  prop- 
erty for  the  use  of  such  corporation  for  right  of  way. 
Cherokee  ^tion  v.  So.  Kans.  K'y,  135  U.  S.,  641. 

While  Congress  may  contract  with  individuals  and 
corporations  for  services  to  the  government ;  may  grant 
aids  by  money  or  land,  etc.,  and  exempt  from  State  tax- 
ation, when  Congress  deems  it  necessary,  the  mere  fact 
that  a  corporation  deriving  its  existence  from  State  law, 
exercising  its  franchises  under  such  law  and  holding  its 
property  within  State  jurisdiction  and  under  State 
protection,  does  not  exempt  it  from  taxation,  unless 
Congress  so  declares.  Thompson  v.  Pac.  Railroad,  9 
Wall.,  579. 

Interstate  commerce  by  sea  is  of  a  national  charac- 
ter, and  within  the  exclusive  power  of  Congress, 
Phila.,  etc.,  Co.  v.  Penn.,  122  U.  S.,  326. 

Where  its  power  is  exclusive,  the  failure  of  Congress 
to  make  express  regulations  is  an  indication  of  its  will 


44  COJS^STITUTION  OF  UNITED  STATES.         [Art.  I, 

that  the  subject  shall  be  free  from  restrictions.  Id. ; 
Leisj  V.  Harden,  135  U.  S.,  100;  Bobbins  v.  Shelby 
Co.  Taxing  District,  120  U.  S.,  489. 

Interstate  commerce  can  not  be  taxed  at  all  by  a 
State,  even  though  the  same  amount  of  tax  should  be 
laid  on  domestic  commerce,  or  that  solely  carried  on 
within  the  State.  Bobbins  v.  Shelby  Co.  Taxing  Dist., 
120  U.  S.,  489. 

Congress  passed  a  law  (9  Stat,  at  L.,  440)  that  no 
bill  of  sale,  mortgage,  hypothecation  or  conveyance  of  a 
vessel  of  the  United  States,  or  any  part  of  such  vessel, 
should  be  valid  unless  recorded  in  the  office  of  the  Col- 
lector of  Customs  where  registered.  Held,  a  valid  act. 
Whitens  Bank  v.  Smith,  7  Wall.,  646. 

In  the  absence  of  any  regulation  by  Congress,  the 
State  may  establish  and  regulate  works  of  a  local  char- 
acter affecting  more  or  less  interstate  commerce,  such 
as  wharfage  rates  and  regulations.  Ouachita,  etc.,  Co. 
V.  Aiken,  121  U.  S.,  444. 

State  tax  on  commercial  agents  or  agencies;  when 
void. — An  act  of  Pennsylvania  (May  20,  1853,  and 
Apr.  9,  1859)  required  every  auctioneer  to  collect  and 
pay  into  the  treasury  of  the  State  a  tax  on  his  sales. 
This  act,  so  far  as  it  applied  to  sales  of  imported  goods 
in  the  original  package,  by  the  auctioneer  sold  for  the 
importer,  is  in  conflict  with  sections  8  and  9  of  Art. 
I,  of  the  Constitution  of  the  United   States,   and  it 


Sec.  8.]  REGULATION    OF    COMMERCE.  45 

lays  a  duty  on  imports  and  is  a  regulation  of  commerce. 
Cook  V.  Pennsylvania,  97  U.  S.,  566. 

A  tax  imposed  by  a  State  upon  an  occupation,  which 
tax  necessarily  discriminates  against  the  introduction 
and  sale  of  the  products  of  another  State,  or  against  the 
citizens  of  another  State,  is  repugnant  to  the  Constitu- 
tion. So  held  where  an  agent  employed  in  the 
business  of  soliciting  orders  for  liquors  to  be  shipped 
into  the  State  from  places  without  it,  was  taxed  in  such 
business  at  a  higher  rate  than  those  soliciting  for  goods, 
etc.,  to  be  sold  within  the  State.  This  is  a  restraint 
upon  commerce  between  the  States.  Walling  v.  Michi- 
gan, 116  U.  S.,  446. 

A  Tennessee  law  required  that  "All  drummers  and 
all  persons  not  having  a  regular  licensed  house  of  busi- 
ness in  the  taxing  district  offering  for  sale  or  selling 
goods  by  sample  to  pay  $10  per  week  or  $25  per 
month  for  such  privilege,"  violates  the  constitutional 
provision  as  to  regulation  of  commerce,  so  far  as  it  af- 
fects interstate  trade.  Robbins  v.  Shelby  Taxing  Dist., 
120  U.  S.,  489.  A  similar  Maryland  statute  held  void. 
Corson  v.  Maryland,  120  U.  S.,  502. 

A  State  law  exacting  a  license  tax  to  enable  a  person 
within  the  State  to  solicit  orders  and  make  sales  for  a 
person  residing  in  another  State  is  repugnant  to  the 
commerce  regulation  clause  of  the  Federal  Constitu- 
tion.    Asher  v.  Texas,  128  U.  S.,  129. 

A  liceaise  imposed  by  California  upon  an  agency  es- 


46  CONSTITUTION  or  united  states.      [Art.  I, 

tablished  in  San  Francisco,  by  a  railroad  company,  to 
induce  passengers  to  take  that  company's  route  to  !N'ew 
York,  is  unconstitutional  as  a  tax  upon  interstate  com- 
merce, and  void.     McCall  v.  Cal.,  136  U.  S.,  104. 

The  act  of  the  legislature  of  Kentucky  which  pro- 
vides that  the  agent  of  an  express  company  not  incor- 
porated by  the  laws  of  that  State  must  first  obtain  li- 
cense and  satisfy  the  auditor  as  to  the  capital  of  the 
company  he  represents,  is  a  regulation  of  interstate 
commerce  and  so  far  void.  Crutcher  v.  Kentucky,  141 
U.  S.,  47. 

An  ordinance  requiring  agents  soliciting  orders  on 
behalf  of  manufacturers  of  goods  to  take  out  a  license 
and  pay  a  tax  therefor,  under  authority  conferred  by  a 
statute  granting  such  power  to  the  municipal  corpora- 
tion, is  an  exercise  of  the  taxing  power,  and  not  the  po- 
lice power,  and  when  enforced  against  an  agent  sent  by 
a  manufacturer  in  another  State  to  solicit  orders  for 
the  products  of  his  manufactory  it  imposes  a  tax  upon 
interstate  commerce,  in  violation  of  the  provisions  of 
the  Constitution.  Brennan  v.  Titusville,  153  U.  S., 
289. 

A  municipal  ordinance  of  ^ew  Orleans  to  establish 
a  rate  of  license  for  professions,  callings  and  other 
business  attempted  to  charge  and  collect  a  license  tax 
on  persons  owning  and  running  tow-boats  to  and  from 
the  Gulf  of  Mexico  and  the  city  of  'New  Orleans.  Held, 
a  regulation  of  commerce,  and  infringing  the  Constitu- 


Sec.  8.]  REGULATION   OF   COMMERCE.  47 

tion  of  the  United  States.  Moran  v.  "New  Orleans,  112 
U.  S.,  69. 

The  license  tax  imposed  on  companies  doing  busi- 
ness in  Florida  applies,  as  construed  bj  the  Supreme 
Court  of  that  State,  to  business  within  the  State,  and 
not  to  interstate  business,  and  is  valid.  Osborne  v. 
Florida,  164  U.  S.,  650. 

A  State  license  tax  on  factors,  brokers,  buyers  or 
sellers  on  commission,  held  to  affect  interstate  com- 
merce so  remotely  as  not  to  amount  to  a  regulation  of 
<jommerce.  Ficklen  v.  Shelby  Co.  Taxing  Dist.,  145 
U.  S.,  1. 

The  railroad  company  made  a  contract  with  an  ele- 
vator company  that  the  latter  in  consideration  of 
building  an  elevator  should  have  for  a  prescribed  term 
all  grain  brought  by  its  cars  to  Dubuque,  on  the  Missis- 
sippi river,  to  be  transmitted  to  a  place  beyond.  Sub- 
sequently a  bridge  lawfully  built  across  the  river  for 
railroad  use  made  the  elevator  storage  a  useless  ex- 
pense, but  it  still  continued  binding  and  the  railroad 
company  could  not  claim  that  it  was  an  interference 
ivith  interstate  commerce.  R.  R.  Co.  v.  Richmond, 
19  Wall.,  584. 

State  restrictions  upon  foreign  commerce,  naviga- 
tion, or  immigration,  how  far  void. — A  state  tax  upon 
passengers,  whether  citizens  or  foreigners,  entering  a 
port  of  that  State  is  void.  People  v.  Comp.  Gen.  Trans- 
Mlantique,  107  U.  S.,  59. 


48  CONSTITUTION  OF  UNITED  STATES.         [Art.  I^ 

A  statute  of  a  State  that  masters  and  wardens  of  a 
port  within  it  should  be  entitled  to  demand  and  re- 
ceive, in  addition  to  other  fees,  the  sum  of  $5.00  for 
every  vessel  arriving  in  port  is  a  regulation  of  com- 
merce, and  void.  Steamship  Co.  v.  Portwardens,  ^ 
Wall.,  31  (1867). 

The  legislature  passed  a  law  in  1869  making  it  un- 
lawful for  any  other  than  the  master  and  wardens  or 
their  deputies  of  the  port  of  ^NTew  Orleans  to  make  sur- 
vey of  the  hatches  of  sea-going  vessels  or  to  make  sur- 
veys of  damaged  g(5ods  coming  on  board  such  vessel. 
Held,  void,  being  a  regulation  of  commerce  with  for- 
eign nations.  Foster  v.  Master,  etc.,  Port  of  INTew  Or- 
leans, 94  U.  S.,  246. 

An  act  of  Alabama  (1854)  compelling  registration 
of  steamboat  owners,  their  place  of  business,  etc.,  un- 
der penalty,  is  a  regulation  of  commerce,  and  void. 
Sinnot  v.  Mobile,  22  How.,  227. 

Original  packages  of  imported  goods. — A  State  law 
requiring  an  importer  of  foreign  articles  to  take  a  li- 
cense from  State  authority  and  pay  a  sum  therefor  into 
the  State  treasury  or  to  any  State  official  or  other  local 
authority  is  in  violation  of  clause  giving  power  to  Con- 
gress to  regulate  commerce,  and  also  the  clause  which 
prohibits  the  States  from  laying  any  imposts,  etc. 
Brown  v.  Maryland,  12  Wheat.,  419.  This  leading 
case  is  followed  and  cited  in  numerous  subsequent  deci- 
sions.    It  defines   an  impost  or   duty  to   be  custom  or 


Sec.  8.]  REGULATION   OF   COMMERCE.  49 

tax  laid  on  articles  brouglit  into  a  country.  Imports 
are  articles  brought  into  a  country.  A  duty  on  imports 
is  a  duty  upon  the  article  itself  and  not  the  act  of  im* 
portation.  It  is  the  first  "original  package"  case* 
The  rule  was  applied  in  Low  v.  Austin,  13  Wall.,  29 ; 
Cook  V.  Pennsylvania,  97  XJ.  S.,  573 ;  Bowman  v.  Chi- 
cago, 125  U.  S.,  506.  This  subject  is  further  anno- 
tated under  another  clause.     See  post,  p.  70. 

Original  packages  of  imported  goods,  which  can  not 
be  assessed  for  local  taxation,  consist  of  the  boxes,  case» 
or  bales,  in  which  they  were  shipped;  not  the  smaller 
packages  therein  contained,  although  these  are  the 
packages  in  which  the  goods  are  put  up  by  the  manu- 
facturer; and  when  the  packages  in  which  the  goods 
are  shipped  reach  their  destination  for  use  or  trade 
and  the  box  or  case  is  opened  for  the  sale  and  delivery 
of  the  distinct  parcels  contained  in  it,  each  parcel  loses  ' 
its  distinctive  character  as  an  import  and  becomes 
property  subject  to  taxation  in  the  State,  the  same  as 
other  property.  F.  May  &  Co.  v.  "New  Orleans,  178 
U.  S.,  496. 

An  assessment  for  taxation  of  goods  in  the  original 
packages  in  which  they  were  imported,  before  they 
have,  by  the  act  of  the  importer,  become  incorporated 
with  the  mass  of  property  of  the  State,  is  void  as  a  vio- 
lation of  the  8th  and  10th  sections  of  Art.  I  of  the  Con- 
stitution, prohibiting  the  States  to  lay  imposts  or  duties 
on  imports,  and  giving  Congress  power  to  regulate ■;Si?3r^y>» 

A  ■■■■  THK 

(  SRSIT 


50  CONSTITUTION-  OF  UNITED  STATES.         [Art.  I, 

eign  cominerce.      F.  May  &  Co.  v.  ;N"ew  Orleans,  178 
U.  S.,  496. 

Power  of  Congress,  how  far  exclusive. — The  grant 
of  the  commercial  power  to  Congress  does  not  expressly 
'  exclude  the  States  from  exercising  authority.  If  they 
are  excluded  it  is  (1)  because  the  nature  of  the  power 
is  such  that  the  grant  of  power  to  Congress  requires 
that  a  similar  power  should  not  exist  in  the  States,  or 
(2)  because  Congress  has  so  exercised  the  power  that 
state  exercise  would  be  incompatible.  Cooley  v.  War- 
dens of  Philadelphia,  12  How.,  299.  (3)  When  the 
subjects  on  which  it  is  exercised  are  national  in  charac- 
ter and  require  uniformity,  the  power  of  Congress  is 
exclusive.  (4)  When  the  subjects  are  local  in  their  na- 
ture or  operate  or  constitute  aids  to  commerce,  the 
State  may  provide  for  their  proper  regulation  and  man- 
^agement  until  Congress  acts  and  supersedes  State  ac- 
tion. Cardwell  v.  Am.  Bridge  Co.,  113  IT.  S.,  205; 
Ferry  Co.  v.  Penn.,  114  U.  S.,  196 ;  Brown  v.  Houston, 
114  IT.  S.,  622.  (5)  When  a  law  of  a  state  imposes 
a  license  tax  on  boats  under  such  circumstances  and 
with  such  effect  as  to  amount  to  a  regulation  of  com- 
merce it  is  void  on  that  account.  Moran  v.  "New  Or- 
leans, 112  IT.  S.,  69.  (6)  When  a  pilot  is  licensed  un- 
der the  laws  of  the  United  States,  the  State  law  can  not 
compel  a  vessel  having  such  a  pilot  to  take  a  State  pilot 
under  R.  S.,  sec.  4237,  which  enacts  that  no  State  shall 
make  any  regulations  which  shall  make  any  discrimin- 


Sec.  8.]  INTERSTATE   COMMERCE.  51 

ation  in  the  trade  of  pilotage  or  lialf -pilotage  between 
vessels  sailing  between  the  ports  of  different  States. 
Spraigue  v.  Thompson,  118  U.  S.,  90. 

The  power  to  regulate  between  the  States  includes  a 
control  of  the  electric  telegraph  as  an  agency  of  com- 
merce. Pensacola  Tel.  Co.  v.  W.  U.  Tel.  Co.,  96  U.  S., 
1 ;  W.  U.  Tel.  Co.  v.  Texas,  105  U.  S.,  460.  The  Act  of 
Congress  of  July  24,  1866,  giving  telegraph  companies 
the  right  to  run  their  lines  along  post  roads,  etc.,  on  ac- 
cepting certain  terms  prescribed  by  K.  S.,  Sees.  5263-9, 
makes  each  company  an  agent  of  the  government,  so  far 
as  its  business  is  concerned.  Id.  A  State  law,  requir- 
ing the  delivery  of  interstate  messages  to  addressees,  one 
mile  distant  from  the  office,  is  void.  W.  U.  Tel.  Co. 
V.  Pendleton,  122  U.  S.,  347. 

State  legislation  which  would  impose  a  direct  burden 
upon  interstate  commerce  or  interfere  with  its  free- 
dom by  direct  means,  encroaches  upon  the  exclusive 
power  of  Congress.     Hall  v.  De  Cuir,  95  U.  S.,  485. 

The  power  of  Congress  over  commerce  is  in  no  wise 
restricted  by  State  authority.  Pembina,  etc.,  Co.  v. 
Pennsylvania,  125  U.  S.,  181. 

INSTANCES  OF  CONSTITUTIONAL  STATE  TAXATION  OF  COE* 
PORATE  FRANCHISES,  PROPERTY,  GROSS  RECEIPTS, 
ETC.,  USED  IN  INTERSTATE  COMMERCE. 

The  constitutional  limitation  of  the  power  of  Con- 
gress over  commerce,    "to   regulate  commerce   among 


52  CONSTITUTIOI^  OF  UI^ITED  STATES.         [Art.  I, 

the  several  States/'  etc.,  necessarily  excludes  from  Fed- 
eral control  all  that  commerce  which  is  carried  on  en- 
tirely within  the  limits  of  a  State,  and  does  not  affect 
or  extend  to  other  States.  But  a  steamer  employed  in 
transporting  goods  on  Grand  river,  in  Michigan,  des- 
tined for  other  States,  and  goods  brought  from  outside 
the  State  destined  to  places  in  the  State  was  engaged  in 
commerce  between  the  States  and  subject  to  Con- 
gressional regulation.  The  Daniel  Ball,  10  Wall., 
557. 

Taxation  on  gross  earnings  within  State,  held  legal 
in  Dakota,  act  of  1883.  McHenry  v.  Alford,  168 
U.  S.,  651. 

A  State  law  requiring  an  annual  tax  to  be  paid  for 
privilege  of  exercising  its  franchises  determined  by  the 
proportion  which  its  gross  receipts  in  the  State  bear  to 
the  whole  receipts,  to  be  ascertained  as  the  statute  re- 
quires, is  valid.  Maine  v.  Grand  Trunk  R'y  Co.,  142 
U.  S.,  21Y. 

Taxation  on  basis  of  proportional  value  of  franchise, 
etc. — The  statute  of  Massachusetts  (Pub.  St.,  c.  13,  Sees. 
40,  43)  requiring  a  telegraph  company  owning  a  line 
of  telegraph  within  the  State  to  pay  to  the  State  Treas- 
urer a  tax  upon  its  corporate  franchises  at  a  valuation 
equal  to  the  aggregate  value  of  the  shares  in  its  capital 
stock,  deducting  such  portion  of  that  valuation  as  is 
proportional  to  the  length  of  its  lines  without  the  State, 
and  deducting  also  an  amount  equal  to  the  value  of  its 


Sec.  8.]  INTERSTATE   COMMERCE.  63 

real  estate  and  machinery  subject  to  local  taxation 
within  the  State,  is  valid,  as  applied  to  a  telegraph 
company  incorporated  by  another  State,  and  which  had 
accepted  the  rights  conferred  by  Congress  by  Sec.  5263, 
E.  S.  U.  S.    Mass.  v.  West.  Un.  Tel.  Co.,  141  U.  S.,  40. 

Although  the  transportation  of  the  subjects  of  inter- 
state commerce  or  the  receipts  therefrom,  or  the  occu- 
pation or  business  of  carrying  it  on  can  not  directly  be 
subjected  to  State  taxation,  yet  property  belonging  to 
corporations  or  companies  engaged  in  such  commerce 
may  be  taxed  by  States ;  and  whatever  the  form  of  the 
exaction,  if  it  is  essentially  only  property  taxation,  it 
will  not  fall  within  the  inhibition  of  the  Constitution. 
Adams  Ex.  Co.  v.  Ohio  State  Auditor,  165  U.  S.,  194. 
In  this  case  the  property  of  the  company  within  the 
State  was  taxed,  and  in  fixing  its  value  it  was  assessed 
proportionately  to  the  value  of  the  entire  property  of 
the  express  company,  the  proportion  being  fairly  as- 
certained. Unity  of  use  is  an  element  of  value,  the 
same  as  in  estimating  value  of  a  railway  property  in 
several  States. 

A  State  statute  imposing  a  tax  on  the  capital  stock 
of  all  corporations  engaged  in  the  transportation  of 
freight  and  passengers,  within  such  State,  under  which 
a  corporation  of  another  State  engaged  in  running  rail- 
road cars  into,  through  and  out  of  such  State  and  hav- 
ing at  all  times  a  large  number  of  such  cars  in  the 
State,  taxed  by  taking  as  the  basis  of  assessment  such 


54  CONSTITUTION  OF  UNITED  STATES.  [Art.  I, 

proportion  of  its  capital  stock  as  the  number  of  miles 
of  railroad  in  the  State  bear  to  the  whole  number  of 
miles  over  which  the  cars  are  run,  does  not  as  applied 
to  such  a  corporation,  conflict  with  the  commerce  clause 
of  the  Constitution.  Pullman's  Palace  Car  Co.  v.  Penn- 
sylvania, 141  U.  S.,  18 ;  Same  v.  Hayward,  id.,  36. 

The  statute  of  a  State  (Indiana,  Laws,  1893,  c.  171) 
required  a  telegraph  company  to  pay  a  tax  upon  its 
property  within  the  State  valued  at  such  a  proportion 
of  the  whole  value  of  its  capital  stock  as  the  length  of 
its  lines  within  the  State  bears  to  its  lines  every  where, 
deducting  a  sum  equal  to  the  value  of  the  real  estate, 
held  valid.  West.  Un.  Tel.  Co.  v.  Taggart,  163 
U.  S.,  1. 

A  State  privilege  tax  on  each  mile  of  wire  within  the 
State,  imposed  on  all  telegraph  companies  therein  in 
lieu  of  other  taxes,  being  a  tax  on  property  and 
not  on  interstate  commerce,  is  valid.  Tel.,  etc.,  Co.  v. 
Adams,  155  U.  S.,  688. 

A  city  ordinance  imposing  a  license  on  business  done 
by  a  telegraph  company  exclusively  in  the  city,  and  ex- 
cluding business  done  for  the  government  and  to  and 
from  points  outside  of  the  State,  is  an  exercise  of  the 
police  power,  not  an  interference  with  interstate  com- 
merce.    Postal  Tel.  Co.  v.  Charleston,  153  U.  S.,  692. 

Tax  upon  corporate  franchises. — The  statute  of  'New 
York,  requiring  every  corporation,  joint-stock  com- 
pany, or  association  organized  under  the  laws  of  that 


Sec.  8.]  II^TERSTATE  COMMEECE.  55 

State  or  other  States  or  countries  doing  business  in  that 
State,  except  banks,  etc.,  to  pay  a  tax  upon  its  fran- 
chise or  business  annually,  as  construed  by  the  highest 
Court  in  that  State  is  held  not  repugnant  to  the  Fed- 
eral Constitution.  ISTew  York  v.  Eoberts,  171  U.  S., 
658. 

A  tax  on  franchises  of  a  foreign  mining  corporation, 
etc.,  to  be  ascertained  upon  a  percentage  of  its  whole 
capital  stock,  ascertained  as  the  statute  prescribes,  held 
valid.  Horn  Silver  Mining  Co.  v.  New  York,  143 
U.  S.,  305. 

An  act  of  'New  York  fixing  rate  of  elevator  charges, 
held  valid.  Budd  v.  New  York,  143  U.  S.,  517,  ad- 
hering to  Munn  v.  Illinois,  94  TJ.  S.,  113,  and  explain- 
ing Chic,  etc.,  E'y  Co.  v.  Minnesota,  134  U.  S.,  418. 

A  corporation  created  by  one  State  can  exercise  its 
corporate  functions  in  another  State  only  by  the  comity; 
of  the  latter,  and  may  be  taxed  for  the  privilege  of  do- 
ing business  therein.     Ins.  Co.  v.  Mass.,  10  Wall.,  566. 

A  stipulation  in  a  charter  that  the  company  shall 
pay  the  State  granting  the  charter  a  bonus  of  some  of 
its  earnings  is  not  an  interference  with  interstate  com- 
merce ;  nor  is  it  the  imposition  of  a  tax  or  impost  on  the 
same,  nor  a  discrimination  against  the  citizens  of  other 
States.     E.  E.  Co.  v.  Maryland,  21  Wall.,  456.  « 

Internal  commerce  is  under  State  control,  and  to 
encourage  the  growth  of  such  commerce  of  the  State, 
it    may    provide    for    deepening    channels,    removing 


56  COIfSTITUTIOl!^  OF  UI^ITED  STATES.  [Art.  I, 

obstructions,  regulate  the  water  flow,  and  improve  them 
in  other  ways,  and  levy  a  general  tax  or  toll  upon  those 
who  use  the  streams  to  meet  the  cost  of  such  improve- 
ment, providing  the  free  navigation  of  the  waters,  as  per- 
mitted under  and  by  the  laws  of  the  United  States,  is 
not  impaired,  and  provided,  also,  that  any  system  for 
the  improvement  of  their  navigation,  adopted  by  the 
general  government,  is  not  defeated.  Sands  v.  Manis- 
tee Eiv.  Imp.  Co.,  123  U.  S.,  288. 


INSTANCES  OF  TJNCONSTITUTIONAL  STATE  LAWS,  WHICH 
INTERFERE  WITH  INTERSTATE   COMMERCE. 

Unconstitutional  taxation  of  interstate  commerce  or 
of  the  receipts  therefrom  or  instrumentalities  thereof. 

(a)  State  tax  on  gross  receipts  of  railroads  for  busi- 
ness in  interstate  commerce,  void.  Michigan  levied  a 
tax  on  the  gross  receipts  of  railroads  for  the  carriage 
of  freights  and  passengers  into,  out  of,  or  through  the 
State.  Held,  a  tax  on  interstate  commerce  and  there- 
fore void.     Fargo  v.  Michigan,  121  U.  S.,  231. 

(b)  A  state  tax  on  gross  receipts  of  a  railroad  com- 
pany is  not  repugnant  to  the  Constitution  of  the 
United  States,  even  though  such  gross  receipts  are 
made  up  in  part  from  freights  received  from  interstate 
commerce.  The  court  distinguishes  between  a  tax  on 
the  freight  and   a  tax   on  the  fruits   of  such   carriage 


Sec.  8.]  INTERSTATE   COMMEECE.  57 

after  it   has   been   commingled   with   other   property. 
State  Tax  on  Eailway  Gross  Receipts,  15  Wall.,  284. 

(c)  A  State  tax  upon  the  gross  receipts  of  steamship 
company  incorporated  under  the  laws,  which  receipts 
are  derived  from  the  transportation  of  persons  and 
property  by  sea  between  different  States  and  to  foreign 
countries  is  void,  as  a  regulation  of  interstate  and  for- 
eign commerce.  Philadelphia,  etc.,  Steamship  Co.  v. 
Pennsylvania,  122  U.  S.,  326. 

(d)  Special  tax  on  railroad  and  stage  companies  for 
€very  passenger  carried  out  of  the  State,  is  a  tax  on 
travel  from  State  to  State,  and  as  a  regulation  of  com- 
merce void  when  Congress  has  acted  on  the  subject.  6 
Wall.,  35.  And  is  void  as  an  obstruction  to  citizens 
traveling,  etc.,  and  doing  business  for  the  United 
States.     Crandall  v.  ISTevada,  6  Wall.,  35. 

(e)  A  railroad,  which  as  a  link  of  a  through  line 
Tunning  into  other  States,  is  engaged  in  interstate  com- 
merce and  a  tax  imposed  for  the  privilege  of  keeping 
an  office  in  the  State  for  the  use  of  its  officers,  etc.,  is  a 
tax  upon  commerce  among  the  States  and  as  such  re- 
pugnant to  the  Constitution.  Norfolk  &  Western  Wj 
€o.  V.  Pennsylvania,  136  U.  S.,  114. 

(f )  A  law  of  Illinois  was  held  void  as  operating  to 
affect  the  rates  for  interstate  transportation.  Wabash^ 
etc.,  Wj  Co.  V.  Illinois,  118  U.  S.,  557.  This  statute 
attempted  to  make  the  charges  for  "long  hauls"  and 
^'short  hauls"  proportionate  to  the  distance  of  the  haul. 


58  CONSTITUTION  OF  UNITED  STATES.  [Art.  I,. 

and,  as  construed  by  the  Illinois  court,  it  applied  to 
transportation  beyond  the  State.  Thus  construed  it  ap- 
plied to  and  interfered  with  interstate  commerce.  It 
also  applied  the  same  rule  to  passenger  rates. 

(g)  Sleeping  car  tax. — The  legislature  of  Tennessee 
passed  in  1877  a  law  which  imposed  a  privilege  tax  of 
$50  per  annum  on  every  sleeping  car  used  or  run  over 
a  railroad  in  Tennessee,  not  owned  by  the  railroad  on- 
which  it  is  run  or  used.  This  was,  held  void  so  far  as  it 
applied  to  interstate  transportation  of  passengers. 
Pickard  v.  Pullman  So.  Car  Co.,  117  U.  S.,  34. 

Taxation  of  railroads  and  other  transportation  com- 
panies by  the  State. — Various  attempts  have  been  made 
by  the  States  to  tax  railroad  and  other  transportation 
companies.  The  State  of  Pennsylvania  in  1864  at- 
tempted to  impose  a  tax  upon  freight  taken  up  within 
and  carried  out  of  the  State,  or  taken  without  and 
brought  within  it.  The  highest  court  of  the  State  sus- 
tained this  tax.  The  Supreme  Court  of  the  United 
States  sent  its  writ  of  error  to  the  State  court,  and  re- 
versed this  decision,  holding  that  transportation  of 
freight  is  a  constitutional  part  of  commerce,  and  that  a 
State  tax  upon  freights  transported  from  State  to  State 
is  an  attempted  tax  on  commerce  itself.  Whenever  the 
transportation  of  freight  or  passengers  is  taxed  by 
States  it  can  only  be  as  to  levies  on  business  entirely 
within  the  States.  State  Freight  Tax  Case,  15  Wall.^ 
232. 


Sec.  8.]  INTEESTATE   COMMERCE.  5^ 

The  same  principle  was  early  established  in  Cran- 
dall  V.  Nevada,  6  Wall.,  35.  Nevada  sought  to  tax 
specially  stage  companies,  etc.,  for  every  passenger 
carried  out  of  the  State  by  stage  or  railroad.  The  Su- 
preme Court  held  this  act  void.  So  in  Fargo  v.  Michi- 
gan, 121  U.  S.,  230,  a  State  law  of  Michigan  "went  by 
the  board."  It  was  not  a  tax  upon  business,  but  dis- 
guise it  as  they  would,  it  was  but  a  tax  upon  commerce 
among  the  States. 

A  statute  of  Illinois  attempted  to  enact  that  railroad 
companies  should  be  liable  to  a  penalty  for  transport- 
ing freight  or  passengers  at  the  same  or  a  greater  sum 
for  any  distance  than  they  charged  for  a  longer  dis- 
tance. This  was  held  invalid  so  far  as  it  applied  to  in- 
terstate transportation,  though  valid  as  to  internal  com- 
merce.    Wabash,  etc.,  Co.  v.  Illinois,  118  U.  S.,  657. 

The  Texas  statute  of  May  6,  1882,  making  it  un- 
lawful for  a  railroad  company  in  that  State  to  charge 
and  collect  a  greater  sum  for  transportation  of  freight 
than  is  specified  in  the  bill  of  lading,  is,  when  applied 
to  freight  transported  into  the  State  from  without  it,  in 
conflict  with  the  interstate  commerce  act,  and  not  ap- 
plicable to  interstate  shipments.  Gulf,  etc.,  Ry.  Co, 
V.  Hefley,  158  U.  S.,  98. 

The  statute  of  Mississippi,  requiring  all  railroads 
carrying  passengers  in  that  State  (other  than  street 
railways)  to  provide  equal  but  separate  accommoda- 
tions for  the  white  and  colored  races,  does  not  violate 


60  COI^STITUTION  OF  UIS^ITED  STATES.  [Art.  I, 

the  Federal  Constitution,  having  been  construed  hj  the 
Supreme  Court  of  the  State  to  apply  solely  to  com- 
merce within  the  State,  does  no  violence  to  the  com- 
merce clause  .  of  the  Constitution.  Louisville,  etc., 
K'y  V.  Mississippi,  133  U.  S.,  587. 

Taxation  of  telegraph  companies. — The  State  legis- 
latures, eager  to  compel  foreign  corporations  doing 
business  within  their  respective  jurisdictions  to  bear 
the  burden  of  running  the  government,  have  in  several 
instances  tried  to  tax  telegraph  companies  on  the  mes- 
sages they  sent.  The  case  came  to  the  Supreme  Court 
first,  on  the  question  whether  a  telegraph  line  is  an  in- 
strumentality of  commerce.  The  State  of  Florida  un- 
dertook to  give  to  the  Pensacola  Telegraph  Co.  an  ex- 
clusive right  to  maintain  telegraph  lines  in  that  State. 
The  Congress  in  1866  passed  a  law  allowing  telegraph 
<3ompanies  to  operate  lines  on  any  military  or  post  roads 
or  over  any  of  the  public  domain.  The  Pensacola 
Company  undertook  to  enjoin  the  Western  Union  from 
running  lines  in  that  State  in  competition  with  their 
exclusive  franchise  granted  by  the  State.  The  case 
came  to  the  Supreme  Court,  and  it  was  there  decided 
(1)  That  the  power  of  Congress  to  regulate  commerce 
with  foreign  nations  and  among  the  several  States  and 
to  establish  post  offices  and  post  roads  was  not  confined 
to  the  old  instrumentalities  of  commerce  known  or  used 
when  the  Constitution  was  adopted,  but  keeps  pace  with 
the  progress  of  the  country,  and  adapts  itself  to  the 


Sec.  8.]  Iiq^TEKSTATE   COMMERCE.  61 

new  developments  of  time  and  circumstances ;  (2)  That 
the  power  to  regulate  commerce  was  legitimately  exer- 
cised in  extending  privileges  of  the  act  of  1866  to  tele- 
graph companies;  (3)  That  the  law  of  Florida,  as  it 
tended  to  obstruct  and  hinder  this  commerce  between 
the  States,  was  inoperative  as  against  a  company  which 
had  complied  with  the  Act  of  Congress,  1866  (R.  S., 
U.  S.,  Sec.  5263,  et  seq.),  and  obtained  the  right  to  es- 
tablish its  lines  along  railways  and  over  military  and 
post  roads,  from  private  owners.  Pensacola  Tel.  Co. 
V.  W.  U.  Tel.  Co.,  96  U.  S.,  1.     See  ante,  p.  51. 

This  decision  fixed  the  telegraph  line  as  an  instru- 
mentality of  interstate  commerce.     Id. 

Then  followed  the  case  of  Telegraph  Company  v. 
Texas,  105  U.  S.,  460,  which  held  that  a  tax  attempted 
to  be  imposed  by  State  law,  on  telegraph  messages  sent 
out  of  Texas,  was  an  illegal  interference  by  the  State 
with  interstate  commerce,  and  the  law  levying  it  was 
void  as  repugnant  to  the  Constitution. 

It  remained  for  the  State  of  Ohio  to  attempt  to  im- 
pose a  tax  on  telegraph  companies  in  another  way.  By 
an  act  of  the  legislature  a  State  tax  was  levied  upon  all 
receipts  of  a  telegraph  company.  As  these  included 
receipts  from  interstate  business  the  law  was  held  to 
that  extent  void.  Eatterman  v.  W.  U.  Tel.  Co.,  127 
U.  S.,  411. 

The  State  of  Alabama  undertook  by  State  law  to  em- 
power a  municipal  corporation  to  impose  a  license  tax 


62  CONSTITUTION^  OF  UNITED  STATES.  [Art.  I, 

on  a  telegraph  companj,  and  a  penalty  for  not  paying 
it.  The  agent  of  the  Western  Union  Telegraph  Com- 
pany was  sued  for  this  penalty,  as  he  was  instructed 
to  refuse  to  pay  the  tax.  The  case  came  on  writ  of  er- 
ror to  the  Supreme  Court  of  the  United  States  and  in 
1887  was  decided.  The  Court  followed  the  line  of  de- 
cisions already  indicated.  This  general  license  tax 
operating  on  all  its  business  ran  counter  to  the  power 
of  Congress  ^'to  regulate  commerce,"  and  as  it  affected 
its  entire  business  it  was  held  a  void  tax.  Leloup  v. 
Mobile,  127  U.  S.,  641. 

In  Western  Union  Telegraph  Company  v.  Attorney 
General,  125  U.  S.,  530,  the  State  of  Massachusetts 
had  a  law  which  required  corporations  and,  among 
others,  telegraph  companies  to  pay  certain  taxes;  and 
required  the  attorney  general  to  bring  suit  to  enjoin 
them  from  doing  business,  when  in  arrear  of  such 
taxes.  The  telegraph  company  was  taxed  on  its  lines 
operating  in  that  State,  the  value  of  which  was  to 
be  ascertained  by  comparing  the  same  with  the  length 
of  the  entire  lines.  The  Supreme  Court  held  this  act 
valid  as  to  tax,  but  void  as  to  the  power  to  enjoin.  The 
Supreme  Court  carefully  distinguishes  between  the 
right  of  the  State  to  tax  property  within  its  borders 
even  of  a  corporation  engaged  in  interstate  commerce 
and  the  right  to  tax  that  commerce. 

But  in  St.  Louis  v.  W.  U.  Tel.  Co.,  148  U.  S.,  92 
(decided  in  1893),  the  city  of  St.  Louis,  by  power  de- 


^SeC.  8.]  IN^TERSTATE   COMMERCE.  63 

rived  from  its  charter,  passed  an  ordinance  compelling 
the  telegraph  companies  to  paj  an  annual  tax  of  $5.00 
on  every  pole  "for  the  privilege  of  using  the  streets,  al- 
leys and  public  places."  This  was  held  not  to  be  a  li- 
cense tax  but  a  charge  in  the  nature  of  a  rental  and  not 
Tepugnant  to  the  Constitution. 

A  statute  of  a  State  which  requires  a  telegraph  com- 
pany to  pay  a  tax  upon  its  property  within  the  State, 
valued  at  such  a  proportion  of  the  whole  value  of  its 
capital  stock,  as  the  length  of  its  lines  within  the  State 
bears  to  its  entire  length  of  lines  everywhere,  deducting 
therefrom  the  value  of  its  real  estate  and  machinery 
subject  to  local  taxation  within  the  State,  is  valid,  not- 
withstanding it  does  not  in  terms  direct  a  deduction 
from  the  valuation,  either  for  the  value  of  its  fran- 
chises from  the  United  States,  or  for  the  value  of  its 
real  estate,  and  machinery  situated  and  taxed  in  other 
States.  So  held  as  to  an  Indiana  statute  of  1891, 
which,  as  construed  by  the  Supreme  Court  of  that 
State,  makes  it  the  duty  of  the  tax-commissioners  to 
make  deductions,  on  account  of  the  greater  proportional 
value  of  the  company's  property  outside  the  State  or  for 
any  other  reason,  so  as  to  assess  the  property  within  the 
State  at  its  true  cash  value.  So  construed  the  act  is 
constitutional.  West.  Un.  Tel.  Co.  v.  Taggart,  163 
U.  S.,  1.     See  ante,  p.  52. 

A  city  ordinance,  passed  pursuant  to  State  law,  re- 


64  COI^STITUTION  OF  UNITED  STATES.         [Art.  I^ 

quired  a  telegraph  company  (which  had  accepted  the 
provisions  of  the  Act  of  July  24,  1866,  c.  230,  14 
Stats.,  221),  to  pay  a  license  tax  upon  business  done  ex- 
clusively within  the  city,  not  including  any  business 
done  to  or  from  points  outside  the  State,  or  business 
done  for  the  government  of  the  United  States  or  its  of- 
ficers, is  a  valid  exercise  of  police  power  and  not  an  in- 
terference with  interstate  commerce.  Postal  Tel.  Co.  v. 
Charleston,  153  U.  S.,  692. 

Property  sent  from  one  State  to  another,  on  its  ar- 
rival there  is  then  subject  to  taxation,  and  subject  to 
the  general  taxes  imposed  upon  property  in  that  State. 
Brown  v.  Houston,  114  U.  S.,  622. 

Where  goods  were  imported  and  a  contract  for  the 
purchase  of  cargoes  of  foreign  merchandise  before  or 
after  the  arrival  of  the  vessel  in  ihe  bay  of  Mobile 
(which  is  a  part  of  the  port  of  Mobile  and  included  in 
it),  where  by  the  terms  of  the  contract  the  goods  are 
not  to  be  at  the  risk  of  the  purchaser  until  delivered  to 
him  in  said  bay,  do  not  constitute  the  purchaser  an  "im- 
porter," and  the  goods  so  purchased  and  sold  by  him 
though  in  original  packages,  may  be  property  sub- 
jected to  taxation  by  the  State.  Waring  v.  Mayor,  8 
Wall.,  110. 

Where  a  railroad  within  a  State  is  taxed  on  its  gross 
receipts  for  tolls  and  transportation,  and  among  such 
tolls  are  rentals  paid  to  it  by  another  company  en- 
gaged in  interstate  transportation,  the  law  imposing 


Sec.  8.]  INTERSTATE  COMMEKCE.  65 

such  tax  is  valid.  ^N".  Y.,  etc.,  E'j  v.  Pennsylvania, 
158  U.  S.,  431.  In  the  case  of  Telegraph  Co.  v.  Adams, 
155  U.  S.,  688,  the  statute  of  Mississippi  imposed  a 
tax  against  telegraph  companies  organized  under  tho 
laws  of  other  States,  according  to  the  miles  of  wire 
within  the  State,  in  lieu  of  taxes  directly  levied  on  the 
property.  This  act  did  not  put  an  unconstitutional  re- 
straint upon  commerce,  nor  interfere  with  it. 

A  stipulation  in  the  charter  of  a  railroad  company 
that  it  shall  pay  to  the  State  a  bonus  or  portion  of  it3 
earnings  is  not  repugnant  to  the  Constitution  of  the 
United  States.  B.  &  O.  K.  K.  Co.  v.  Maryland,  21 
Wall.,  456. 

A  company  was  chartered  by  Georgia  to  do  a  general 
forwarding  and  express  business.  It  had  an  office  in 
Mobile  and  there  had  an  express  business  extending  be- 
yond the  limits  of  Alabama  and  under  the  contract  so 
to  do.  An  ordinance  of  Mobile  required  a  license  tax 
to  be  paid  by  such  a  company.  Held,  not  repugnant  to 
the  Constitution.     Osborne  v.  Mobile,  16  Wall.,  479. 

A  tax  on  account  of  transportation  from  one  point  to 
another  in  the  same  State  though  passing  during  transit 
through  part  of  another  State  is  not  a  tax  upon  inter- 
state commerce,  and  is  valid.  Lehigh  Valley  R'y  v. 
Pennsylvania,  145  U,  S.,  192. 

Railway  gross  receipts  taxable. — A  statute  of  a  State 
imposing  a  tax  upon  the  gross  receipts  of  a  railroad 
company  is  not  a  tax  on  imports  or  exports  nor  a  regula- 


66  COIfSTITUTIOI^  OF  UNITED  STATES.  [Art.  I, 

tion  of  interstate  commerce,  nor  a  tax  upon  interstate 
transportation.  "State  Tax  on  Railway  Gross  Re- 
ceipts," 15  Wall.,  284. 

A  State  statute  which  levies  a  tax  upon  the  gross  re- 
ceipts of  railroads  for  the  carriage  of  freight  and  pas- 
sengers into,  out  of,  or  through  the  State  is  a  tax  upon 
commerce  and  therefore  void.  Fargo  v.  Michigan, 
121  U.  S.,  230.  The  State  may  tax  the  money  actually 
within  the  State,  after  it  has  passed  beyond  the  stage 
of  compensation  for  carrying  persons  or  property,  as 
it  may  tax  other  money  or  property  within  its  limits; 
but  a  tax  specifically  upon  receipts  for  carriage  of 
freights  and  passengers  into,  out  of,  or  through  the 
State  is  a  tax  upon  the  commerce  out  of  which  it  arises, 
and  void.     Id. 

A  State  can  not  under  the  guise  of  taxing  business 
within  its  borders  impose  a  burden  upon  commerce 
among  the  States.     Id. 

A  State  tax  upon  the  gross  receipts  of  a  steamship 
company  incorporated  under  its  laws,  which  receipts 
are  derived  from  the  transportation  of  persons  and 
property  by  sea,  between  diiferent  States,  and  to  and 
from  foreign  countries,  amounts  to  a  regulation  of  in- 
terstate and  foreign  commerce  and  is  void.  Phila.,  etc., 
Steamship  Co.  v.  Penna.,  122  U.  S.,  326. 

A  State  tax  upon  freight,  transported  from  one  State 
to  another,   is   a   regulation  of  commerce   among  the 


Sec.   8.]  INTEESTATE  COMMEKCE.  67 

States,  and  void.  State  Freight  Tax  Case,  15  Wall., 
232. 

Right  of  States  to  regulate  or  prohibit  the  sale  of  in- 
toxicating liquors. — A  license  tax  by  the  State  upon 
dealers  in  beer  and  ale  bj  the  cask,  which  was  not  man- 
ufactured in  the  city  imposing  such  tax,  was  held  not 
in  conflict  with  either  the  clause  as  to  regulating  com- 
merce or  that  protecting  the  privileges  or  immunities  of 
citizens  of  the  several  States.  Downham  v.  Alexan- 
dria Council,  10  Wall.,  173. 

The  right  to  sell  intoxicating  liquors  is  not  one  of 
the  privileges  and  immunities  of  citizens  that  States 
have  no  power  to  abridge.  Bartemeyer  v.  Iowa,  18 
Wall.,  129. 

The  provisions  of  the  statute  of  Connecticut,  leaving 
the  sale  of  liquors,  etc.,  to  County  Commissioners  do 
not  conflict  with  the  14th  Amendment.  Gray  v.  Con- 
necticut, 159  U.  S.,  74. 

A  State  law  imposing  a  tax  of  50  cents  a  gallon 
on  all  spirituous  liquors  brought  into  the  State  is  con- 
stitutional where  a  like  tax  is  imposed  on  liquors  man- 
ufactured in  the  State.  Hinson  v.  Lott,  8  Wall.,  148. 
But  this  is  qualified  by  the  rule  that  the  State  law 
must  not  interfere  with  the  right  to  sell  imported  liquor 
in  the  original  cask  or  package.  Thurlow  v.  Mass.,  5 
How.,  504. 

The  power  of  regulation  of  the  sale  of  liquor  in  a 
State  is  subject  to  State  Constitution  and  statutes.     Gi- 


68  coxsTiTUTiois^  or  united  states.       [Art.  I, 

ozza  V.  Tiernan,  148  U.  S.,  657 ;  Kidd  v.  Pearson,  128 
U.  S.,  1. 

"No  one  lias  an  inherent  right  to  sell  intoxicating 
liquors  at  retail.  Crowley  v.  Christensen,  137  U.  S., 
86. 

A  State  law  prohibiting  the  manufacture  of  intoxi- 
cating liquors  within  its  limits  to  be  there  sold  for  gen- 
eral use  as  a  beverage  violates  no  right,  privilege,  or  im- 
munity secured  by  the  United  States  Constitution.     Id. 

A  corporation  incorporated  as  the  Boston  Beer  com- 
pany in  1828,  by  act  of  the  legislature  of  Massachusetts, 
was  given  certain  powers  and  privileges  of  manufactur- 
ing corporations  granted  by  an  act  (1809).  That  act  was 
repealed  in  1829.  But  it  contained  a  proviso  that  the 
legislature  might  from  time  to  time,  on  due  notice,  make 
further  provision  and  regulations  for  the  management 
of  business  of  the  corporation,  or  wholly  to  repeal  any 
act,  or  part  thereof,  establishing  a  corporation.  The 
act  of  1869  prohibited  the  sale  of  intoxicating  and 
certain  malt  liquors.  Held,  (1)  That  the  provisions 
of  the  act  of  1809,  touching  the  power  reserved  by 
the  legislature,  were  adopted  in  the  charter,  and  part  of 
the  contract  between  the  State  and  the  Company. 

(2)  That  the  contract  was  not  affected  by  the  repeal 
of  the  act  of  1809. 

(3)  Under  the  company's  charter  it  had  no  more 
rights  than  individuals  had  to  manufacture  and  sell 
malt  liquors. 


Sec.   8.]  INTEESTATE  COMMERCE.  69 

(4)  The  State  can  prohibit  the  sale  of  such  liquors 
under  the  police  power.  The  doctrine  of  Bartemejer  v. 
Iowa,  18  Wall.,  129,  reaffirmed.  Beer  Co.  v.  Mass., 
97  U.  S.,  25. 

A  statute  prohibiting  the  manufacture  of  intoxi- 
cating liquors  is  not  invalid  as  a  regulation  of  com- 
merce because  it  does  not  except  from  its  operation  li- 
quors manufactured  for  export.  Kidd  v.  Pearson,  128 
U.  S.,  1. 

The  provisions  in  the  legislation  of  the  State  of 
Texas,  respecting  the  taxation  of  persons  engaged  in  the 
sale  of  spirituous,  vinous  or  malt  liquors  or  medicated 
bitters  do  not  violate  the  Federal  Constitution.  Gi- 
ozza  V.  Tiernan,  148  U.  S.,  657. 

The  ordinary  legislation  of  a  State  regulating  or  pro- 
hibiting the  sale  of  intoxicating  liquors  is  not  repug- 
nant to  the  Constitution.  Foster  v.  Kansas,  112  U.  S.,, 
205;  Bartemeyer  v.  Iowa,  18  Wall.,  129. 

The  mode  of  prohibition  is  wholly  within  the  discre- 
tion of  the  State  legislatures.  Carney  v.  Iowa,  5 
Wall.,  480 ;  Thurlow  v.  Mass.,  5  How.,  504. 

A  special  license  imposed  by  a  city  for  the  privilege 
of  selling  beer  is  not  invalid.  Downham  v.  Alexan- 
dria, 10  Wall.,  173. 

The  license  under  an  act  of  Congress  imposed  under 
the  excise  or  revenue  law  of  the  United  States,  does 
not  give  the  right  to  keep  or  sell  liquors  in  violation  of 
the  State  laws,  and  is  no  defense  to  an  indictment  un- 


VO  CONSTITUTION  OF  UNITED  STATES.  [Art.  I, 

der  State  law.  McGuire  v.  Mass.,  3  Wall.,  387;  Li- 
cense Tax  Cases,  5  Wall.,  462,  480. 

Original  package  cases. — A  statute  of  a  State  pro- 
hibiting the  sale  of  any  intoxicating  liquors  except  for 
pharmaceutical,  medical,  chemical,  or  sacramental  pur- 
poses, etc.,  as  applied  to  a  sale  by  the  importer  and  in 
the  original  package  or  kegs,  unbroken  and  unopened, 
if  such  liquors  manufactured  and  brought  in  from  an- 
other State,  is  unconstitutional  and  void,  as  repugnant 
to  the  commerce  clause  of  the  Federal  Constitution. 
Leisy  v.  Hardin,  135  U.  S.,  100,  followed  in  Lyng  v. 
Mich.,  id.,  161. 

The  act  of  August  8,  1896  (26  Stat,  315,  c.  728), 
which  enacts  that  "all  fermented,  distilled  or  other  in- 
toxicating liquors  or  liquors  transported  into  any  State 
or  Territory,  or  remaining  therein  for  use,  consump- 
tion, sale,  or  storage  therein,  shall  upon  arrival  in  such 
State  or  Territory  be  subject  to  the  operation  and  effect 
of  the  laws  of  such  State  or  Territory  enacted  under  its 
police  powers,  and  shall  not  be  exempt  therefrom  by 
reason  of  being  introduced  in  original  packages  or 
otherwise,"  is  valid.     In  re  Eahrer,  140  U.  S.,  545. 

But  retrospective  operation  is  not  given  to  the  act. 
Id.  iN'or  was  it  necessary  to  re-enact  the  State  law  af- 
ter the  passage  of  that  Act  of  Congress.     Id. 

The  South  Carolina  Dispensary  law. — The  "Dispen- 
sary law  of  South  Carolina"  held  invalid.  It  recog- 
nized liquors  as  commodities  which  might  be  bought 


Sec.  8.]  INTERSTATE  COMMERCE.  Yl 

and  sold,  and  therefore  must  be  deemed  to  be  the  sub- 
ject of  foreign  and  interstate  commerce,  and  obstructs 
and  interferes  with  it,  and  to  that  extent  stands  con- 
demned.    Scott  V.  Donald,  165  U.  S.,  58. 

INSTANCES  WHERE  STATE  LAWS  ARE  VALID  EXERCISE  OF 
POLICE  POWERS,  THOUGH  REMOTELY  OR  INCIDENT- 
ALLY AFFECTING  COMMERCE. 

1.  Wharfage  may  he  charged  hy  a  city  which  owns 
and  maintains  improved  wharves  at  its  own  expense. 
This  is  not  an  interference  with  the  power  of  Congress; 
to  regulate  commerce.  Packet  Co.  v.  Keokuk,  95  U.  S., 
80;  Packet  Co.  v.  St.  Louis,  100  U.  S.,  423;  Oua- 
chita Packet  Co.  v.  Aiken,  121  U.  S.,  444. 

Acts  of  States  regulating  pilotage  are  in  view  of  acts 
of  Congress  recognizing  and  adopting  them,  to  be 
deemed  constitutionally  made  till  Congress  supersedes 
them  by  its  own  acts.  Ex  parte  Mcl^iel,  13  Wall., 
236. 

The  pilot  laws  of  'New  York  held  not  to  conflict  with 
the  Constitution  of  the  United  States.  Ex  parte  Mc- 
l^iel,  13  Wall.,  236,  and  Cooley  v.  Wardens,  etc.,  12 
How.,  299,  reaffirmed.  Wilson  v.  McJSTamee,  102 
U.  S.,  572. 

The  statute  of  Minnesota  requiring  railway  com- 
panies to  fence  their  roads  is  a  police  regulation  and 
does  not  deny  equal  protection  of  the  laws.  Minne- 
apolis,  etc.,  K'y  v.  Emmons,  149  U.  S.,  364. 


T2  CONSTITUTION  OF  UNITED  STATES.  [Art.  I, 

Fee  for  filing  articles  of  consolidation,  amounting 
to  a  percentage  on  the  entire  authorized  stock,  is  not 
a  tax  on  interstate  commerce.  Ashley  v.  Ryan,  153 
U.  S.,  436. 

Grain  elevators — States  may  regulate  charges. — 1, 
The  business  of  elevating  grain  is  one  charged  with  a 
public  interest,  analogous  to  that  of  common  carriers, 
and  it  may  be  regulated  and  rates  for  elevating  and 
storing  fixed  by  State  laws  for  the  public  good.  Budd 
V.  ISTew  York,  143  U.  S.,  517. 

2.  And  this  is  so,  notwithstanding  such  elevators  are 
used  as  instruments  by  those  engaged  in  interstate  com- 
merce, and  until  Congress  acts  in  relation  to  these  in- 
terstate relations  such  State  regulations  can  be  en- 
forced, even  though  they  may  indirectly  operate  upon 
commerce  beyond  the  State  jurisdiction.  Munn  v. 
Illinois,  94  U.  S.,  113. 

B.  Owners  of  elevators  are  not  deprived  of  the  equal 
protection  of  the  laws  by  such  regulations  (Brass  v. 
Stoeser,  153  U.  S.,  391),  nor,  of  property  without  due 
process  of  law  (Budd  v.  l^ew  York,  143  U.  S.,  517), 
at  least  where  the  charges  are  not  shown  to  be  unreason- 
able.     (Id.)      See  post,  pp.  338,  353. 

4.  One  who  engages  in  the  business  of  elevating  and 
storing  grain  of  other  people  for  profit  is  subject  to  such 
statutory  regulations  although  his  main  purpose  in 
maintaining  the  elevator  is  to  store  his  own  grain  in 
carrying  on  his  own  business  of  buying  and  shipping 
for  sale;  and  the  statute  may  require  him  to  store  for 


Sec.    8.]  INTERSTATE   COMMERCE.  73 

others  at  the  fixed  rate  when  there  is  room  to  receive  it. 
Brass  v.  Stoeser,  153  U.  S.,  391. 

5.  As  to  reasonableness  of  charges,  see  post,  p.  338. 

Running  of  trains  on  Sunday. — State  may  forbid  it, 
and  though  a  needless  intrusion  on  commerce  it  is  with- 
in the  exercise  of  State  police  power.  Hennington  v. 
Georgia,  163  U.  S.,  299. 

Requiring  railway  trains  to  stop  at  stations. — A 
statute  of  Illinois  (R.  S.,  1889,  c.  114,  Sec.  88)  re- 
quired all  regular  trains  of  railroad  corporations  to 
stop  at  stations  of  county  seats  a  sufficient  length  of 
time  to  receive  and  let  off  passengers.  The  Supreme 
Court  of  the  State  construed  it  as  requiring  the  fast 
mail  trains  of  the  companies  to  make  such  stops.  Held, 
that  it  was  an  unconstitutional  hindrance  and  obstruc- 
tion of  interstate  commerce  and  the  passage  of  the 
mails  of  the  United  States. 

The  requirement  of  the  Illinois  statute  that  all  reg- 
ular passenger  trains  must  stop  at  county  seats,  is  a  di- 
rect burden  on  interstate  commerce,  so  far  as  it  requires 
interstate  passenger  trains  to  stop  at  such  stations. 
Cleveland,  etc.,  R'y  Co.  v.  Illinois,  177  U.  S.,  514. 
But  such  requirement  may  be  made  as  to  trains  running 
wholly  within  the  state.  Gladson  v.  Minnesota,  166 
U.  S.,  427. 

And  a  statute  may  require  three  of  the  regular  trains, 
if  so  many  are  run  daily,  to  stop  at  stations  in  cities 
or  villages   containing   a   specified  population.     Lake 


T4  COK^STITUTION  OF  UI^ITED  STATES.  [Art.  T, 

Shore,  etc.,  Ej.  Co.  v.  Ohio,  173  U.  S.,  285.  Such 
regulation  need  not  necessarily  burden  interstate  com- 
merce.    Id. 

Speed  of  trains  in  cities. — A  regulation  of  the  speed 
of  railroad  trains  within  the  limits  of  a  city  is  not  an 
unconstitutional  interference  with  interstate  com- 
merce.    Erb  V.  Morasch,  177  U.  S.,  584. 

States  may  impose  conditions  on  which  foreign  cor- 
porations may  do  business  in  the  State. — The  imposi- 
tion of  conditions  on  which  foreign  insurance  compan- 
ies may  do  business  in  a  State  are  not  provisions  re- 
lating to  interstate  commerce.  Hooper  v.  California, 
155  U.  S.,  648;  Doyle  v.  Continental  Ins.  Co.,  94 
U.  S.,  535. 

A  State  may  impose  terms  on  which  a  foreign  cor- 
poration shall  carry  on  business  in  its  territory.  Bank 
V.  Earle,  13  Pet.,  579 ;  Paul  v.  Virginia,  8  Wall.,  168; 
Ducat  V.  Chicago,  10  Wall.,  410. 

"But  when  it  imposes  limitations  upon  the  power  of 
the  non-resident  corporation  to  make  contracts  for  car- 
rying on  commerce  between  the  States,  it  violates  the 
Constitution."  Cooper  Mfg.  Co.  v.  Ferguson,  113 
U.  S.,  727. 

The  statute  of  Iowa  of  1862  enacted  that  all  rail- 
roads operating  lines  in  that  State  should  &x  their  rates 
per  mile  for  passengers  or  freights,  etc.  The  Congress 
passed  a  law  June  15,  1866  (15  Stat,  at  L.,  66),  de- 
clared  that   every   railroad   company   in   the   United 


Sec.    8.]  INTERSTATE   COMMERCE.  75 

States  was  authorized  to  carry  upon  and  over  its  road, 
boats,  bridges,  etc.,  all  passengers,  troops,  government 
supplies,  mails,  freight  and  property  on  their  way  from 
one  State  to  another,  and  to  receive  compensation  there- 
for. The  railroad  company  contended  that  the  State 
law  was  in  conflict  with  the  Act  of  Congress.  Held, 
that  the  State  law  was  valid,  being  but  a  police  regula- 
tion.    E.  K.  Co.  V.  Fuller,  17  Wall.,  560. 

The  statute  of  Missouri  (K.  S.,  89,  Sec.  944),  pro- 
vided that  whenever  any  property  is  j-eceived  by  a  com- 
mon carrier  to  be  transported  from  one  place  to  another, 
within  or  without  the  State,  it  shall  be  liable  for  any 
loss  caused  by  its  own  negligence  or  the  negligence  of 
any  other  carrier,  etc.,  having  been  construed  by  the  Su- 
preme Court  of  that  State  as  not  restricting  the  right  of 
a  carrier  to  limit  its  liability  to  the  end  of  its  own  road, 
is  valid.  Missouri,  etc.,  K'y  v.  McCann,  174  TJ.  S., 
680. 

A  statute  of  Iowa  Code  (1873,  Sec.  1308)  provided 
that  "no  contract,  receipt,  rule  or  regulation  shall  ex- 
empt any  corporation  engaged  in  transporting  persons 
or  property  by  railway  from  liability  of  a  common  car- 
rier, or  carriers  of  passengers,  which  would  have  ex- 
isted had  no  contract,  receipt,  rule  or  regulation  been 
made  or  entered  into."  Held,  that  as  applied  to  an  in- 
jury happening  within  the  State,  it  does  not  contravene 
the  Constitution  as  a  regulation  of  commerce.  Mil.  & 
St.  P.  K'y  V.  Solan,  169  U.  S.,  133. 


T6  CONSTITUTIOIT  OF  UI^ITED  STATES.  [Art.  I, 

The  legislature  of  Delaware,  in  an  act  incorporating 
a  railroad  company,  required  the  company  to  pay  an- 
nually one-fourth  of  1  per  cent,  tax  on  the  capital  stock. 
This  did  not  prevent  a  subsequent  legislature  from  im- 
posing a  further  tax,  but  was  simply  a  declaration  of 
the  rate  payable  till  a  further  rate  was  fixcfd.  Later, 
the  company  consolidated  with  a  company  whose  line 
ran  into  another  State,  by  virtue  of  acts  passed  in  three 
States.  Afterwards,  the  State  imposed  a  further  tax 
of  one-fourth  of  1  per  cent.,  on  the  cash  value  of  each 
share  of  stock,  but  where  the  company's  line  was  partly 
in  another  State,  the  company  should  pay  only  in  pro- 
portion as  the  length  of  the  road  in  Delaware  bore  to 
the  whole  length  of  the  road.  This  was  held  not  to  con- 
flict with  the  Constitution  of  the  United  States.  Del- 
aware V.  E.  K.  Tax  Case,  18  Wall.,  206. 

An  act  of  a  State  legislature  establishing  a  commis- 
sion with  power  to  classify  and  regulate  rates  of  fare 
and  freight  on  railroads  is  valid,  being  the  creation  of 
a  board  administrative  in  nature  to  carry  out  the  will 
of  the  State.  Eeagan  v.  Farmers'  Loan  &  Trust  Co., 
164  IJ.  S.,  362. 

A  statute  of  California  required  that  the  Commis- 
sioner of  Immigration,  a  State  officer,  should  satisfy 
himself  that  any  passengers  coming  into  that  State  were 
not  "paupers,  idiots,  etc.,  or  lewd  or  debauched 
women."  He  was  to  charge  75  cents  for  every  pas- 
senger examined  and  collect  it  of  the  shipmaster,  or 


Sec.   8.]  II^TERSTATE  COMMERCE.  Y7 

the  vessel  by  attachment.  Held,  that  the  act  went  be- 
yond the  necessities  of  protecting  the  State  from  crim- 
inal, diseased  or  immoral  foreigners;  that  such  power 
existed  in  the  State  but  could  not  be  so  exercised  as 
to  invade  the  right  of  Congress  to  regulate  commerce 
with  foreign  nations.  Chy  Lung  v.  Freeman,  92 
U.  S.,  275. 

A  State  statute  requiring  locomotive  engineers  to  be 
licensed  after  examination  as  to  competency  is  not  a 
regulation  of  interstate  commerce,  but  a  valid  exercise 
of  the  police  power.  Smith  v.  Alabama,  124  U.  S., 
465.  A  fee  charged  therefor  is  not  a  tax  upon  trans- 
portation.    Id. 

The  State  may  legislate  as  to  duties,  qualifications 
and  liability  of  employes,  to  secure  against  accidents, 
as  to  require  of  engineers  an  examination  for  color 
blindness.  ^N'ashville,  etc.,  Ky.  v.  Alabama,  128 
U.  S.,  96. 

The  Iowa  Code,  Sec.  4059,  making  owner  of  Texas 
cattle  liable  for  damages  suffered  by  allowing  them  to 
run  at  large,  is  valid  exercise  of  police  power.  Kim- 
mish  V.  Ball,  129  U.  S.,  217. 

Laws  of  a  State  forbidding  the  killing  of  woodcocks, 
ruffed  grouse,  or  quail  for  the  purpose  of  conveying  the 
same  beyond  the  State,  or  the  transportation  of  the  same^ 
do  not  infringe  the  Federal  Constitution.  The  reason 
on  which  this  rests  is  that  wild  animals  are  the  prop- 
erty of  the  State.     It  can  allow  them  to  be  killed  or  for- 


78  COIS^STITUTIO]^  OF  UNITED  STATES.    '      [Art.  I, 

bid  it.  When  caught  or  killed  lawfully  the  property 
vests  in  the  one  who  catches  or  kills.  But  the  State 
may  impose  conditions  that  only  a  limited  or  qualified 
property  shall  pass  from  the  State  to  the  captor.  A 
condition  that  the  game,  fish,  etc.,  shall  not  be  used  out- 
side the  State  is  one  that  the  State  may  impose.  Geer 
V.  Connecticut,  161  U.  S.,  533. 

Insurance  not  commerce. — The  business  of  fire  in- 
surance is  not  interstate  commerce  (Paul  v.  Virginia, 
S  Wall.,  168;  Liverpool,  etc.,  Ins.  Co.  v.  Mass.,  10 
Wall.,  566 ;  Phila.,  etc.,  Ass'n  v.  :N"ew  York,  119  U.  S., 
110)  ;  nor  is  marine  insurance  (Hooper  v.  California, 
155  U.  S.,  648);  nor  is  life  insurance.  "New  York 
Life  Ins.  Co.  v.  Cravens,  178  U.  S.,  389. 

The  business  of  life  insurance  is  not  commerce.  A 
State  may  require  a  foreign  insurance  company  to 
make  its  policies  non-forfeitable  for  non-payment  of 
premiums,  as  a  condition  of  doing  business  in  the 
State,  or  may  refuse  to  admit  it  if  so  inclined.  E'ew 
York  Life  Ins.  Co.  v.  Cravens,  178  U.  S.,  389,  cit- 
ing Paul  V.  Virginia,  8  Wall.,  168 ;  Hooper  v.  Cali- 
fornia, 155  U.  S.,  648 ;  Daggs  v.  Orient  Ins.  Co.,  172 
U.  S.,  557;  Ins.  Co.  v.  Morse,  20  Wall.,  450;  Doyle  v. 
Ins.  Co.,  94  U.  S.,  535. 

State  inspection  laws,  when  void. — Minnesota  passed 
A  statute  providing  for  inspection  of  all  cattle,  sheep 
and  swine  designed  for  slaughter  for  human  food.  Its 
terms  were  so  framed  as  to  exclude  from  the  State  all 


Sec.   8.]  INTERSTATE   COMMERCE.  79 

fresh  beef,  veal,  mutton,  lamb,  or  pork  taken  from  ani- 
mals slaugbtered  in  other  States ;  and  it  was  held  void 
as  it  burdened  interstate  commerce.  Minnesota  v. 
Barber,  136  U.  S.,  314.  It  can  not  stand  as  a  rightful 
exercise  of  the  police  power. 

The  Act  of  Virginia  of  Feb.  18,  1890,  declares  it  to 
be  unlawful  to  offer  for  sale,  within  the  limits  of  the 
State,  any  beef,  veal,  or  mutton  from  animals  slaugh- 
tered more  than  100  miles  from  the  place  where  of- 
fered for  sale,  unless  previously  inspected  and  approved 
by  local  inspectors  appointed  under  that  act.  The  in- 
spector was  to  be  paid  one  cent  a  pound  for  inspection. 
This  operated  to  discriminate  against  such  meats  pro- 
duced in  other  States,  as  was  its  intent,  and  was  held 
void  as  a  restraint  upon  commerce  among  the  States. 
Brimmer  v.  Kebman,  138  TJ.  S.,  78. 

An  act  of  Virginia,  requiring  the  inspection  of  all 
flour  brought  into  the  State  and  offered  for  sale,  held 
repugnant  to  the  commerce  clause.  Voight  v.  Wright, 
141  U.  S.,  62. 

The  act  of  I^orth  Carolina  providing  for  inspection 
of  fertilizers  to  prevent  imposition,  held  not  in  collision 
with  the  power  of  Congress  over  commerce.  Patapsco 
Guano  Co.  v.  ]^orth  Carolina,  171  U.  S.,  345. 

A  statute  of  Maryland  providing  for  the  inspection 
of  tobacco,  and  forbidding  it  to  be  carried  out  of  the 
State  except  in  hogsheads  inspected  and  marked  and  a 
certain  charge  allowed  for  inspection  or  "outage,"  be- 


80  CONSTITUTIOiq-  OF  TJIs^ITED  STATES.  [Art.  I, 

ing  merely  an  inspection  duty  was  held  valid.     Tur- 
ner V.  Maryland,  107  U.  S.,  38. 

A  statute  of  Georgia  requiring  every  telegraph  com- 
pany, with  a  line  of  wires  wholly  or  partly  within  the 
State,  to  send  or  deliver  the  dispatches  with  diligence^ 
under  penalty,  does  not  interfere  with  interstate  com- 
merce.    West.  U.  Tel.  Co.  v.  James,  162  U.  S.,  650. 

Quarantine  laws,  when  valid. — A  requirement  that 
each  vessel  passing  a  quarantine  station  shall  pay  a  fee, 
fixed  by  the  statute,  for  examination  of  her  sanitary 
condition,  is  a  part  of  all  quarantine  systems  and  is  not 
a  tax  on  tonnage,  etc.,  and  not  repugnant  to  the  Federal 
Constitution.  Morgan  v.  Louisiana,  93  U.  S.,  217. 
The  State  may  so  regulate  till  Congress  covers  the  same 
ground  or  forbids  such  regulation. 

A  State  can  not  in  order  to  pay  or  defray  the  ex- 
penses of  her  quarantine  regulations  impose  a  tonnage 
tax  on  vessels  owned  in  foreign  ports  and  entering  her 
harbors  in  pursuit  of  commerce.  Peete  v.  Morgan,  19 
Wall.,  581. 

Congress  has  adopted  State  quarantine  laws.  They 
do .  not  interfere  with  commerce ;  and  though  they 
amount  to  a  regulation  of  commerce,  they  are  valid  till 
Congress  otherwise  enacts.  Morgan's  Steamship  Co. 
V.  Louisiana,  118  U.  S.,  455.  The  State  may  charge 
a  fee  for  examination  as  to  her  sanitary  condition. 
This  is  not  a  tonnage  tax.     Id. 

The  statute  of  Missouri,  which  prohibits  driving  or 


Sec.    8.]  INTERSTATE   COMMEECE.  81 

carrying  Texas,  Mexican  or  Indian  cattle  into  the  State 
during  a  portion  of  the  year  is  contrary  to  the  Consti- 
tution. It  is  more  than  a  quarantine  regulation  and 
not  legitimate  exercise  of  the  police  power.  The  State 
may  establish  quarantine  and  reasonable  inspection  reg- 
ulations and  prevent  animals  having  infectious  or  con- 
tagious diseases  from  going  through  or  coming  into  the 
State ;  but  not  by  such  a  sweeping  act  as  the  one  passed, 
upon.     E.  K.  Co.  V.  Hunson,  95  U.  S.,  465. 

Oleomargarine  legislation. — Oleomargarine  has  for 
a  quarter  of  a  century  nearly,  been  recognized  as 
an  article  of  commerce  and  as  an  article  of  food  both  in 
Europe  and  the  United  States,  and  is  recognized  as 
such  by  Congress,  in  the  Act  of  Aug.,  1886,  c.  840.  Be- 
ing an  article  of  commerce  it  can  not  be  wholly  excluded 
from  importation  into  a  State  from  another  State  where 
it  was  manufactured,  although  the  State  into  which  it 
was  imported  may  so  regulate  the  introduction  as  to  se- 
cure purity  of  quality.  Schollenberger  v.  Pennsyl- 
vania, 171  U.  S.,  1.  The  importer  has  a  right  not 
only  to  sell  personally,  but  he  has  the  right  to  employ 
an  agent  to  sell  in  the  original  packages.  The  right 
to  sell  does  not  depend  upon  whether  the  original  pack- 
age was  suitable  for  the  retail  trade  or  not,  but  is  the 
same,  whether  to  consumers  or  wholesale  dealers.     Id. 

A  statute  of  ]^ew  Hampshire  prohibited  the  sale  of 

oleomargarine  as  a  substitute  for  butter,  unless  it  is 

of  a  pink  color.     Held,  invalid.     It  is  plain  that  if  the 
6 


82  CONSTITUTION  OF  UNITED  STATES.         [Art.  I, 

State  had  not  the  power  to  absolutely  prohibit  the  sale 
of  an  article  of  commerce  like  oleomargarine  in  its 
pure  state,  it  has  no  power  to  provide  that  such  article 
shall  be  colored  or  rather  discolored,  by  adding  a  for- 
eign substance  to  it.  Collins  v.  'New  Hampshire,  171 
U.  S.,  30. 

The  Act  of  Massachusetts  (1891,  c.  58)  to  prevent 
deception  in  manufacture  and  sale  of  imitation  but- 
ter, in  its  application  to  oleomargarine  brought  into 
the  State  from  other  States,  is  not  in  conflict  with  the 
interstate  commerce  clause  of  the  Constitution.  Plum- 
ley  V.  Massachusetts,  155  U.  S.,  461. 

The  Act  of  Congress,  Aug.  2,  1886,  c.  840,  impos- 
ing a  tax  upon  oleomargarine,  does  not  involve  an  un- 
constitutional delegation  of  power  on  the  Commissioner 
<of  Internal  Revenue.     In  re  KoUock,  165  U.  S.,  526. 

Federal  tax  on,  an  excise  tax,  or  revenue. — The  pas- 
sage of  the  Act  of  Congress  of  August  2,  1886,  defining 
butter  and  imposing  a  tax  upon  the  sale  of  oleomargar- 
ine was  not  intended  to  interfere  with  any  rightful  au- 
thority of  the  States,  nor  was  it  intended  as  a  regulation 
of  commerce  among  the  States.     Id. 

State  laws  as  to  use  of  oleomargarine  do  not  apply  to 
National  Soldiers'  Homes. — The  State  legislatures  have 
no  constitutional  power  to  interfere  with  the  manage- 
ment which  is  provided  by  Congress  for  the  ^National 
Homes  for  Soldiers,  etc.,  nor  with  the  provisions  made 
by  Congress  for  furnishing  food  to  soldiers ;  and  as  to 


Sec.    8.]  INTERSTATE   COMMERCE.  83 

those  matters  the  officers  in  charge  of  such  homes  are 
not  subject  to  the  State  laws  or  jurisdiction.  Ohio  v. 
Thomas,  173  U.  S.,  276. 

Anti-trust  act, — The  Kansas  City  Live  Stock  Ex- 
change was  an  unincorporated  voluntary  association, 
doing  business  at  its  stock  yard  situated  partly  in  Mis- 
souri and  partly  in  Kansas.  The  business  of  the  mem- 
bers was  to  receive  indirectly  consignments  of  cattle, 
hogs  and  other  live  stock  from  owners  of  the  same  in 
those  two  and  other  States,  to  feed  such  stock  and  prepare 
it  for  market,  sell  same  and  pay  the  owners  the  proceeds 
after  deducting  charges,  expenses  and  advances.  The 
members  were  in  the  habit  of  individually  soliciting 
consignments  of  stock  from  the  owners  and  making  ad- 
vances thereon ;  but  the  rules  of  the  association  forbade 
them  buying  from  any  commission  merchant  in  Kan- 
sas City,  not  h  member  of  the  exchange,  fixed  rate  of 
commission  for  selling,  prohibited  employment  of 
agents  to  solicit  consignments  except  upon  a  certain 
salary,  prohibited  the  sending  of  messages  prepaid  by 
telegram  or  telephone  with  information  as  to  state  of 
markets,  and  forbade  the  members  from  dealing  with 
persons  violating  rules  and  regulations  of,  or  expelled 
from,  the  association.  Held,  that  these  facts  did  not 
show  a  violation  of  the  "anti-trust"  Act  of  1890,  and 
that  they  were  not  engaged  in  interstate  commerce 
within  the  meaning  of  such  act.  The  fact  that  their 
yards  were  partly  in  two  States  was  without  weight; 


84  coNSTiTUTioi^  OF  u:n^ited  states.       [Art.  I, 

tliat  the  rules  and  regulations  were  reasonable  and  fair, 
and  could  not  be  regarded  as  a  restraint  upon  commerce 
among  tbe  States.  Hopkins  v.  United  States,  ITl  U.  S., 
578 ;  Anderson  v.  United  States,  171  U.  S.,  604. 

Monopolies. — The  purchase  of  the  corporate  stock  of 
BUgar  refineries  for  the  purpose  of  acquiring  control 
over,  the  business  of  refining  sugar  for  sale  in  the 
United  States,  was  held  not  to  involve  a  monopoly 
within  the  anti-trust  law  of  1890  (26  Stats,  at  L., 
209,  c.  647).  United  States  v.  E.  C.  Knight  Co.,  156 
U.  S.,  1. 

Anti-trust  law  valid. — Under  the  grant  of  power  to 
Congress  contained  in  this  section  (8  of  Art.  I)  to  regu- 
late commerce  among  the  several  States  and  with  In- 
dian tribes,  that  body  can  enact  such  legislation  as 
shall  declare  void  and  prohibit  the  performance  of  any 
contract  between  individuals  or  corporations  where  the 
natural  and  direct  effect  of  such  contract  shall  be,  when 
carried  into  effect,  directly  and  not  as  a  mere  incident 
to  other  innocent  purposes,  to  regulate  to  any  extent  in- 
terstate or  foreign  commerce  and  to  violate  the  anti- 
trust act.  Addyston  Pipe  &  Street  Co.  v.  United 
States,  175  U.  S.,  211. 

Six  companies  engaged  in  the  business  of  manufac- 
turing cast-iron  pipe  entered  into  a  combination  and 
conspiracy  among  themselves,  by  which  they  agreed 
that  there  should  be  no  competition  between  them  in 
any  of  the  States  and  Territories  mentioned  in  the 


Sec.    8.]  INTERSTATE   COMMEECE.  85 

agreement  (some  36  in  all)  in  regard  to  the  manufac- 
ture of  cast-iron  pipe,  with  a  view  to  enhance  the  price 
of  cast-iron  pipe  dealt  in.  They  were  enjoined 
from  maintaining  such  combination,  so  far  as  it  re- 
lated to  interstate  commerce.  It  was  an  agreement  in 
restraint  of  trade.     Id. 

But  the  jurisdiction  of  Congress  does  not  extend  over 
combinations  in  restraint  of  trade  wholly  within  a  state, 
nor  over  that  part  of  a  combination  that  relates  wholly 
to  trade  within  a  State.     Id. 

Joint  traffic  combinations  illegal. — A  combination  of 
competing  railroads,  engaged  in  interstate  traffic,  was 
formed,  its  declared  purpose  being  in  part  "to  co-operate 
with  each  other  and  adjacent  transportation  associations 
to  establish  and  maintain  reasonable  and  just  rates, 
fares,  rules  and  regulations  on  State  and  interstate 
traffic,  to  prevent  unjust  discrimination  and  to  secure 
the  reduction  and  concentration  of  agencies,"  and  the 
agreement  for  which  provides  for  the  establishment  of 
joint-traffic  agencies  by  the  individual  companies,  and 
the  securing  of,  to  each  road  which  is  a  party,  an  equit- 
able proportion  of  the  competitive  traffic.  The  agree- 
ment forbade  agencies  by  the  individual  companies,  ex- 
cept with  the  approval  of  the  managers  of  the  associa- 
tion and  subjected  the  road  violating  its  provisions  or 
deviating  from  its  rates  to  a  forfeiture  of  a  sum  of 
money.     It  was   held   a   combination   in  restraint   of 


86  CONSTITUTION  OF  UNITED  STATES.         [Art.  I, 

trade,  in  violation  of  the  anti-trust  statute.  United 
States  V.  Joint  Traffic  Ass'n,  171  U.  S.,  505. 

Power  of  Federal  courts  to  enjoin  interference  with 
or  obstructions  to  interstate  commerce. — While  the 
United  States  government  is  one  of  enumerated  powers, 
■  it  has  full  attributes  of  sovereignty  within  the  limits 
of  those  powers,  among  which  are  the  power  over  inter- 
state commerce,  and  over  the  transmission  of  the  mails. 
This  power  is  not  dormant;  and  in  its  exercise  the 
United  States  may  remove  all  obstructions  to  the  pass- 
age of  interstate  commerce  and  may  invoke  the  power 
of  courts  to  restrain  the  interposing  of  such  obstruc- 
tions by  injunction.  In  re  Debs,  158  U.  S.,  564.  For 
violation  of  such  injunction  the  offender  may  be  pun- 
ished for  contempt.     Id. 

Power  of  Congress  over  internal  navigation. — The 
power  of  Congress  over  commerce  comprehends  naviga- 
tion within  the  limits  of  every  State,  so  far  as  it  may  be 
connected  with  commerce  with  other  States  or  foreign 
nations  or  Indian  tribes  (Gibbons  v.  Ogden,  9  Wheat., 
1),  and  the  control  of  navigable  waters  accessible  from 
any  other  State  than  that  in  which  they  be.  Oilman  v. 
Phila.,  3  Wall.,  713. 

The  whole  commercial  marine  of  the  country,  foreign 
and  interstate,  is  placed  under  the  regulation  of  Con- 
gress, and  its  laws  relating  to  foreign  or  coastwise  trade 
are  supremie.    Sinnot  v.  Mobile,  etc.,  22  How.,  227,  244. 

The  Acts  of  Congress  for  the  better  security  of  pas- 


Sec.   8.]  INTERSTATE   COMMERCE.  87, 

sengers  on  steamboats  (5  Stat,  at  L.,  304,  626),  apply  to 
waters  affected  by  interstate  commerce  within  a  State, 
or  between  States,  or  on  the  coast  (Waring  v.  Clarke,  5 
How.,  441)  ;  and  acts  respecting  the  licensing  and  in- 
spection of  steamboats  have  like  application.  The  Dan- 
iel Ball  V.  United  States,  10  Wall.,  557.  The  Act  of 
Congress  exempting  ship  owners  from  loss  by  fire  ap- 
plies on  the  great  inland  lakes  (Act  of  Congress,  9 
U.  S.  Stat,  at  L.,  635),  excepts  vessels  used  in  inland 
navigation  from  the  operation  of  this  statute.  This 
exception  does  not  apply  to  the  great  lakes.  They  are 
inland  seas,  lying  between  us  and  a  foreign  nation. 
Moore  v.  Am.  Trans.  Co.,  24  How.,  1. 

The  Chicago  river  is  a  navigable  stream,  subject  to 
the  commercial  power  of  Congress  (Escanaba,  etc.,  Co. 
V.  Chicago,  107  IT.  S.,  678)  ;  but  such  inland  waters  as 
Cayuga  and  Seneca  lake  in  "New  York  having  no  navi- 
gable connection  with  waters  beyond  the  State  are  sub- 
ject to  State  regulation  and  not  that  of  Congress. 
Moore  v.  Am.  Trans.  Co.,  24  How.,  1. 

Congress  may  regulate  liability  of  owners  of  vessels, 
though  plying  between  ports  of  the  same  State,  if  they 
navigate  the  high  seas.  Lord  v.  Goodall,  etc.,  Co.,  102 
U.  S.,  541. 

The  compact  between  South  Carolina  and  Georgia,, 
made  in  1787  that  the  Savannah  river  should  be  tha 
boundary,  and  the  navigation  thereof  equally  free  to  the 
citizens  of  both  States,  etc.,  has  no  effect  upon  the  subse- 


88  CONSTITUTION"  OF  UNITED  STATES.         [Art.  I, 

quent  provision  of  the  Constitution  that  Congress  shall 
have  power  to  regulate  commerce,  etc.  Congress  has 
the  same  power  over  the  Savannah  river  as  over  other 
rivers.  An  appropriation  for  the  improvement  of  a 
harbor  on  a  navigable  river  to  be  expended  under  di- 
rection of  the  Secretary  of  War,  gives  him  discretion  to 
determine  the  mode.  He  may  divert  the  water  from 
one  channel  to  the  other,  and  this  is  not  a  preference  of 
the  ports  of  one  to  those  of  another  State.  South  Car- 
olina V.  Georgia,  93  U.  S.,  4. 

The  Alabama  act  of  1867,  to  provide  for  the  improve- 
ments of  the  river  and  harbor  of  Mobile,  levied  expenses 
on  that  county  to  make  the  improvement.  The  tax- 
payers claimed  that  it  was  in  conflict  with  the  commer- 
cial power  of  Congress.  Held,  not  in  such  conflict.- 
Mobile  Co.  v.  Kimball,  102  U.  S.,  691. 

The  law  of  the  State  of  Mississippi,  for  the  improve- 
ment of  the  navigation  of  that  river  is  not  in  conflict 
with  the  clause  which  guarantees  the  free  navigation  of 
the  river,  in  the  act  of  Congress  for  the  admission  of 
that  State  into  the  Union.  Withers  v.  Buckley,  26 
How.,  84. 

A  State  may  authorize  a  dam  across  a  navigable 
stream,  where  Congress  has  not  acted  in  respect  to  that 
matter.  The  builder  of  such  a  dam  under  State  au- 
thority is  not  liable  for  damages  caused  thereby.  Pound 
V.  Turck,  95  U.  S.,  459. 

State  'power  as  to  internal  navigation. — A  State  law 


Sec.    8.]  INTERSTATE   COMMERCE.  89 

of  Maine  gave  an  individual  an  exclusive  right  to  navi- 
gate the  upper  waters  of  the  Penobscot  above  falls  which 
prevented  any  interstate  navigation.  Held,  not  in  con- 
flict with  Federal  Constitution.  Yeazie  v.  Moor,  14 
How.,  568. 

The  Montello  was  a  steamboat  plying  the  Fox  river 
between  Oshkosh  and  Portage.  She  was  libeled  for 
forfeiture  for  neglect  to  take  out  license  under  United 
States  laws.  Held,  that  this  water  was  then  only  a 
navigable  water  of  the  State,  so  far  as  appeared  from 
the  record,  and  if  so,  the  forfeiture  did  not  result,  and 
the  sale  was  invalid.     The  Montello,  11  Wall.,  411. 

The  State  of  Alabama  passed  a  law  in  1854  that  all 
steamboats  engaged  in  navigating  the  waters  of  that 
State  should  before  leaving  the  port  of  Mobile,  file  in 
the  office  of  a  State  official  a  statement  of  the  names  of 
the  owners,  their  residence,  and  interest  in  the  vessel. 
The  law  imposed  a  fine  for  failure  to  do  so.  Held,  in- 
valid, as  by  the  laws  of  Congress  such  vessels  were  en- 
rolled and  licensed  for  the  coasting  trade.  Sinnot  v. 
Com.,  etc.,  of  Mobile,  22  How.,  227. 

The  ordinance  of  1787  as  to  the  navigable  waters 
leading  into  the  Mississippi  and  St.  Lawrence  rivers, 
does  not  prevent  a  State  from  improving  the  navigation 
of  such  waters  within  its  limits  and  charging  and  col- 
lecting reasonable  tolls  for  its  compensation  for  using 
such  artificial  improvements  from  vessels  using  the 
same.     Huse  v.  Glover,  119  U.  S.,  543. 


90  CONSTITUTION  OF  UNITED  STATES.  [Art.  ly 

Congress  may,  hy  general  laws,  'provide  a  lien  to  ma- 
terialmen on  vessels  for  supplies  furnished  to  the  ves- 
sel in  its  own  port.  General  maritime  law  does  not  af- 
ford such  a  lien.  Until  Congress  provide  such  a  lien^ 
the  States  may  legislate  upon  the  subject  and  provide- 
such  liens.  The  Lottowanna,  21  Wall.,  558.  See  The 
General  Scott,  4  Wheat.,  438 ;  Pejroux  v.  Howard,  7 
Pet,  324;  U.  S.  v.  35  Chests  of  Tea,  12  Wheat,  486^ 
Norton  V.  Switzer,  93  U.  S.,  355 ;  Leon  v.  Galceran,  11 
Wall.,  185. 

But  such  liens  can  only  be  enforced  in  the  United 
States  Federal  courts.  Id.  And  as  a  discretionary: 
power,  not  as  a  right,  which  the  court  is  bound  to  carry 
into  execution.  Meyer  v.  Tupper,  1  Black.,  522.  State 
legislatures  can  not  create  a  maritime  lien  nor  confer 
jurisdiction  upon  a  State  court  to  enforce  such  lien  in 
rem.  The  Belfast,  7  Wall.,  624;  Edwards  v.  Elliott, 
21  Wall.,  532. 

Liability  for  marine  torts,  under  State  laws. — The 
statute  of  Indiana  making  parties  liable  for  marine 
torts,  resulting  in  death  and  giving  action  to  personal 
representatives  for  the  benefit  of  certain  relatives,  does 
not  encroach  on  the  constitutional  power  to  regulate 
navigable  waters.     Sherlock  v.  Allen,  93  U.  S.,  99. 

The  State  may,  within  its  jurisdiction,  pass  such 
laws,  until  Congress  takes  control  of  it,  as  to  interstate 
commerce,  though  the  State  law  remotely  affects  com- 
merce.    Id. 


Sec.    8.]  IN^TERSTATE   COMMERCE.  91 

Extent  of  admiralty  jurisdiction. — Admiralty  juris- 
diction extends  to  navigable  lakes  and  rivers,  v^ithout 
regard  to  the  ebb  and  flow  of  the  tides  of  the  ocean. 
Genesee  Chief  v.  Fitzhngh,  12  Howard,  443. 

Power  of  Congress  with  respect  to  bridges  over  navir 
gable  streams. — The  ordinance  of  1787,  that  the  navi- 
gable rivers  leading  into  the  Mississippi  and  St.  Law- 
rence rivers  shall  be  common  highways  forever  free, 
without  tax,  impost  or  duty,  refers  to  rivers  in  their 
natural  state.  The  States  through  which  they  may  flow 
may  improve  them  and  charge  and  collect  reasonable 
tolls  for  use  of  such  improvements  from  vessels  using 
the  same  as  compensation  for  the  use  of  the  improve- 
ments.    Huse  V.  Glover,  119  U.  S.,  543. 

Eivers  navigable  in  fact  are  public  navigable  rivers 
in  law,  and  steamboats  navigating  them  are  subject  to 
governmental  regulation.  The  Montello,  20  Wall.,. 
430. 

Congress  under  power  to  regulate  commerce  among 
the  States,  may  act  directly  or  create  a  corporation  to 
build  a  bridge  across  a  navigable  stream  between  two- 
States,  and  to  take  private  lands  for  the  purpose  of 
making  just  compensation.  Luxton  v.  North  Eiver 
Bridge  Co.,  153  U.  S.,  525. 

In  the  absence  of  all  legislation  by  Congress,  a  State 
has  power  to  authorize  a  dam  to  be  built  across  navi- 
gable streams,  though  previously  navigable  for  vessels 


92  COIs^STITUTION  OF  UNITED  STATES.  [Art.  I, 

enrolled  and  licensed  for  the  coasting  trade.  Wilson 
V.  Blackbird  Creek  Marsh  Company,  2  Pet.,  245. 

The  State  of  Virginia  authorized  a  bridge  to  be  built 
over  the  Ohio  river  at  Wheeling.  The  State  of  Penn- 
sylvania filed  a  bill  in  equity  in  the  Supreme  Court  of 
the  United  States  to  compel  the  removal  of  the  bridge 
as  a  nuisance.  Held,  (1)  That  the  law  authorizing  the 
bridge  was  inoperative;  (2)  that  equity  would  enter- 
tain the  bill;  (3)  that  the  bridge  must  be  so  remodeled 
as  to  have  "draws"  in  it  to  admit  of  vessels  passing. 
Wheeling  Bridge  Case,  13  How.,  518. 

This  case  came  before  the  court  a  second  time  (on  a 
motion  to  enforce  the  former  decree)  in  18  How.,  421. 
The  former  decision  was  reaffirmed  and  it  was  further 
held: 

(1)  That  Congressional  legislation  on  the  subject  of 
such  bridges  was  a  valid  exercise  of  the  power  of  regu- 
lating commerce  between  the  States. 

(2)  The  power  to  so  regulate  commerce  includes  the 

power  to  license  and  authorize  bridges  and  regulate  the 
manner  of  construction,  etc. 

(3)  That  Congress  could  authorize  the  former 
bridge  to  stand,  though  the  court  had  decided  it  was  il- 
legal.    Congress  had  done  so. 

(4)  But  such  a  law  could  not  reach  back  and  render 
invalid  the  former  decree  of  the  court. 

(5)  Such  law  did  not  affect  the  plaintiff's  right  to 
costs,  but 


Sec.   8.]  INTERSTATE   COMMERCE.  93 

(6)  As  the  law  of  Congress  legalized  tlie  bridge,  and 
then  it  ceased  to  be  a  nuisance,  the  former  decree  can 
be  no  further  executed;  and  the  bridge  can  not  be 
abated.     Id. 

This  subject  received  further  exposition  in  Gilman  v. 
Philadelphia,  3  Wall.,  713  (1865).  Several  bridges 
had  been  built  across  the  Schuylkill  river  at  Philadel- 
phia under  the  same  rule. 

Congress  has  power  to  legalize  a  bridge  over  a  navi- 
gable river  though  otherwise  the  bridge  might  be  de- 
clared a  nuisance.  The  Clinton  Bridge,  10  Wall.,  454 ; 
mwport  &  Cin.  Bridge  Co.  v.  U.  S.,  105  U.  S.,  470; 
Miller  v.  'New  York,  109  U.  S.,  385. 

When  Congress  declares  a  bridge  over  a  navigable 
river  an  unlawful  structure,  State  legislation  can  not 
make  it  lawful.  Miller  v.  Mayor,  etc.,  of  New  York, 
109  U.  S.,  385. 

When  Congress  grants  a  license  to  build  such  a 
bridge,  it  can  withdraw  it  or  require  alterations  to 
be  made  in  the  structure.  i^Tewport,  etc.,  Co.  v.  U.  S., 
105  U.  S.,  470. 

When  Congress  declares  a  bridge  lawful  and  a  post 
road,  this  does  not  affect  its  obligation  under  its  priv- 
ilege, to  maintain  draw  bridges,  over  navigable  streams. 
New  Orleans,  etc.,  E.  E.  v.  Mississippi,  112  U.  S.,  12. 

When  an  act  of  Congress  enacts  that  a  certain  bridge 
already  built  over  a  river  which  divides  two  States 
"shall  be  a  lawful  structure"  and  shall  be  known  and 


94  CONSTITUTION  OF  UNITED  STATES.  [Art.  I, 

recognized  as  a  post  route,  this  means  that  its  abut- 
ments, piers,  and  draw  superstructure  and  height  shall 
have  the  sanction  of  law,  and  be  maintained  and  used  in 
that  condition.  The  act  is  constitutional,  though 
enacted  after  bridge  is  built  and  after  suit  was  ready 
for  hearing  praying  for  injunction  against  the  bridge 
as  a  nuisance.  Penn.  v.  Wheeling  Bridge  Co.,  18 
How.,  421. 

The  power  of  States  over  bridges  across  navigable 
streams  is  plenary  until  Congress  acts  upon  the  subject. 
Oilman  v.  Phila.,  3  Wall.,  713 ;  Escanaba,  etc.,  Co.  v. 
Chicago,  107  U.  S.,  678.  The  States  may  authorize  the 
construction  of  dams  over  navigable  streams ;  and  until 
Congress  has  taken  action,  such  State  action  is  not  re- 
pugnant to  the»  Constitution.  Wilson  v.  Blackbird 
Creek  Marsh  Co.,  2  Pet.,  245;  Pound  v.  Turck,  95 
U.  S.,  459 ;  Cardwell  v.  Am.  Bridge  Co.,  113  U.  S., 
205;  Willamette  Bridge  Co.  v.  Hatch,  125  U.  S.,  8; 
Hamilton  v.  Vicksburg,  etc.,  Co.,  119  U.  S.,  280. 

A  bridge  constructed  with  a  draw  can  not  be  re- 
garded as  an  obstruction  to  navigation.  Escanaba  Co. 
V.  Chicago,  107  U.  S.,  678. 

When  a  bridge  is  lawfully  maintained  over  a  navi- 
gable river  its  owner  may  resort  to  the  courts  to  pro- 
tect it.  Texas  &  P.  Ey.  v.  Interstate  Trans.  Co.,  155 
IJ.  S.,  585. 

The  State  of  Kentucky  fixed  the  rate  of  tolls  for 
crossing  a  bridge  over  the  Ohio  river  between  Cincin- 


Sec.   8.]  IISTTEESTATE  COMMEECE. 

nati  and  the  Kentucky  shore.  Held,  that  the  act  fixing 
these  tolls  was  an  attempted  regulation  of  interstate 
commerce  and  void.  Covington  &  Cincinnati  Bridge 
Co.  V.  Kentucky,  154  U.  S.,  204. 

Ferry  rights  across  navigable  rivers  between  States, 
The  State  of  Kentucky  gave  exclusive  ferry  right  from 
its  own  shore  to  opposite  side  of  the  river.  This  right 
was  contested  in  the  Supreme  Court.     Held: 

(1)  That,  though  the  State  of  Kentucky  could  give 
and  protect  an  exclusive  license  of  ferriage  from  its 
own  shore,  it  could  not  hinder  such  from  Ohio  shore. 

(2)  That  a  vessel  licensed  in  the  coasting  trade  by 
the  United  States  can  not  be  denied  the  right  to  land 
at  all  customary  landings  in  a  navigable  river. 

(3)  But  such  vessel  can  not  be  used  for  mere  fer- 
riage across  a  river.  From  such  the  State  may  exclude 
it. 

(4)  Such  exclusion  is  no  violation  of  the  right  of 
Congress  to  regulate  commerce  between  the  States. 
Conway  v.  Taylor's  Executor,  1  Black.,  603. 

The  transportation  of  passengers  and  freight  for  hire 
by  a  steam  ferry  across  the  Delaware  river  between 
Pennsylvania  and  !New  Jersey,  by  a  corporation  of  one 
of  the  States,  is  interstate  commerce  and  a  State  exac- 
tion upon  it  is  void.  Gloucester  Ferry  Co.  v.  Pennsyl- 
vania, 114  U.  S.,  196. 

The  establishment  of  ferries  across  navigable  rivers 
or  streams  is  a  subject  within  the  control  of  the  govern- 


96  coNSTiTUTioisr  of  ui^ited  states.       [Art.  I, 

ment,  and  not  a  matter  of  private  right  (Mills  v.  St. 
Clair  Co.,  8  How.,  569),  and  is  reserved  to  the  State 
(Conway  v.  Taylor,  1  Black,  603),  and  the  power  of 
Congress  to  require  vessels  to  be  enrolled  and  licensed, 
derived  from  the  commercial  power,  does  not  interfere 
with  the  police  power  of  the  State  in  granting  ferry  li- 
censes. Wiggins  Terry  Co.  v.  East  St.  Louis,  107 
IJ.  S.,  365 ;  Panning  v.  Gregoire,  16  How.,  524. 

A  municipal  corporation,  having  by  its  charter  an  ex- 
clusive right  to  make  and  maintain  wharves  within  its 
limits  on  a  navigable  river,  can  charge  and  collect 
wharfage  on  the  basis  of  tonnage.  Packet  Co.  v, 
Keokuk,  95  U.  S.,  80. 

EEGULATIOISr    OF    COMMERCE    WITH    INDIAJir    TKIBES. 

The  Congress  shall  have  power, 


-J5-       *       * 


"To  regulate  commerce  *  *  *  with  the  Indian 
tribes." 

Commerce  or  traffic  or  intercourse  carried  on  with  an 
Indian  tribe  or  member  of  such  tribe  is  subject  to  regu- 
lation by  Congress,  though  within  the  limits  of  a  State. 
U.  S.  V.  Halliday,  3  Wall.,  407.  State  legislation  can 
not  withdraw  such  Indians  from  the  influence  of  the 
act  of  Congress.     Id. 

The  sale  of  liquor  to  Indians  can  be  forbidden  by 
Congress,  though  the  Indian  is  under  State  jurisdiction, 
if  he  is  within  charge  of  an  Indian  agent,  although  off 


Sec.   8.]  COMMERCE  WITH  INDIAIT  TRIBES.  b7 

the  reservation.  TJ.  S.  v.  Halliday,  3  Wall.,  407.  But 
it  is  otherwise  where  the  Indian  has  been  naturalized, 
or  made  a  citizen  and  is  out  of  tribal  relation.     Id. 

Congress  may  exclude  spirituous  liquors  from  exist- 
ing Indian  country  or  that  ceded  to  the  United  States. 
U.  S.  V.  Forty-three  Gallons  of  Whiskey,  93  U.  S.,  188. 

Congress  may  not  only  prohibit  the  introduction  of 
whiskey  and  sale  in  the  Indian  country,  but  extend  the 
prohibition  to  territory  in  proximity  to  that  occupied  by 
Indians.     Id. 

Lager  beer  is  not  "spirituous  liquor  or  wine"  within 
the  meaning  of  U.  S.  E.  S.,  Sec.  2139,  as  to  introducing 
such  liquor  into  the  Indian  country.  Sarlls  v.  U.  S., 
152  U.  S.,  570. 

Congress  can  grant  a  right  of  way  through  Indian 
territory  for  a  railroad,  telegraph  and  telephone  line, 
under  power  to  regulate  commerce  with  Indian  tribes. 
Cherokee  JSTation  v.  So.  Kans.  K'y,  135  U.  S.,  641. 

The  State  of  Georgia  passed  a  law  that  any  white 
man  who  should  live  within  the  limits  of  the  Cherokee 
nation  should  be  arrested  and  forcibly  removed.  Rev. 
Samuel  A.  Worcester  entered  the  limits  of  the  Cherokee 
nation  (then  in  the  State  of  Georgia)  as  a  missionary 
of  the  gospel,  as  he  might  do  under  the  then  existing 
treaties  between  the  United  States  and  the  Cherokees. 
He  was  arrested  and  punished  by  State  authorities  un- 
der the  State  law.  The  Supreme  Court,  by  Marshall, 
C.  J.,  giving  its  opinion,  decided  that  the  State  lawa 


98  CONSTITUTION  OF  UNITED  STATES.         [Art.  I, 

were  void,  as  they  attempted  to  interfere  with  the  inter- 
course with  Indian  tribes.  Worcester  v.  State  of 
Georgia,  6  Pet,  515. 

NATURALIZATION. 

The  Congress  shall  have  power,     *     *     * 

"To  establish  an  uniform  rule  of  naturalization 
throughout  the  United  States." 

The  power  of  naturalization  is  exclusively  in  Con- 
gress. Chirac  v.  Chirac's  Lessee,  2  Wheat.,  259,  269. 
"Our  foreign  intercourse  being  exclusively  committed 
to  the  general  government,  it  is  peculiarly  their 
province  to  determine  who  are  entitled  to  the  privilege 
of  American  citizens  and  the  protection  of  the  American 
government."  Marshall,  C.  J.,  arguendo,  Ogden  v. 
Saunders,  12  Wheat.,  213,  277. 

Under  the  act  of  Congress  the  alien  is  not  required  to 
report  himself  after  arrival  to  any  court ;  and  the  time 
of  arrival  does  not  have  to  be  proved  by  the  certificate 
that  he  has  so  reported.  It  may  be  proved  by  other 
evidence.     Spratt  v.  Spratt,  4  Pet.,  393. 

The  judgment  that  the  alien  be  admitted,  if  in  legal 
form,  closes  all  inquiry  as  to  the  testimony  on  which  it 
was  rendered.  Spratt  v.  Spratt,  4  Pet,  393.  If  the 
records  of  naturalization  are  destroyed  secondary  evi- 
dence is  admissible  to  prove  the  fact.  Hogan  v.  Kurtz, 
94  U.  S.,  773. 


Sec.   8.]  ISTATUKALIZATIOI^.  99 

The  admission  of  a  State  on  an  equal  footing  with 
the  original  States,  in  all  respects  involves  the  admis- 
sion as  citizens  of  the  United  States  of  those  whom 
Congress  makes  members  of  the  political  community 
and  who  were  recognized  as  such,  with  the  assent  of 
Congress,  in  the  formation  of  the  new  State.  Col- 
lective naturalization  may  be  effected  in  this  way :  !tTe- 
braska  was  admitted  into  the  Union,  and  the  act  of  ad- 
mission made  citizens  of  all  persons  who  had  under  pre- 
vious territorial  law  attained  to  vote  on  declaring  their 
intentions.  So  the  son  of  an  alien  who  had  declared 
intentions  while  son  was  a  minor,  became  a  citizen  upon 
admission  of  ^N'ebraska  into  the  Union.  Boyd  v.  !N'e- 
braska,  143  U.  S.,  135. 

POWER   TO   EXCLUDE   OK   EXPEL   ALIENS. 

The  United  States  has  the  right  by  virtue  of  its 
sovereignty  to  exclude  or  expel  aliens  or  any  class  of 
aliens.  Fong  You  Ting  v.  United  States,  149  U.  S., 
698.  Wing  Wong  v.  United  States,  163  U.  S.,  228. 
But  before  they  can  be  punished  or  their  property  con- 
fiscated there  must  be  judicial  trial.  Id.  The  Chinese 
exclusion  act  held  valid.  Chae  Chan  Ping  v.  United 
States,  130  U.  S.,  581. 


100 


COXSTITUTIOT^T  OF  U]^ITED  STATES.  [Art.  I, 


U2fIF0EM  BAK^KRUPTCY  LAWS. 

The  Congress  shall  have  power,     -J^     *     * 

"To  establish  *  *  *  uniform  laws  on  the  subject 
of  bankruptcy  throughout  the  United  States." 

The  power  of  Congress  to  pass  bankruptcy  laws  is 
not  exclusive  of  the  power  of  States  to  pass  such  laws ; 
but  when  Congress  passes  a  law,  it  is  paramount  to  all 
State  laws.     Sturges  v.  Crowinshield,  4  Wheat.,  122. 

A  State  law  discharging  a  debtor  from  his  debts  is 
held  to.  impair  the  obligation  of  a  contract.     Id. 

A  State  law  providing  for  the  discharge  of  an  in- 
solvent does  not  impair  the  obligation  of  a  future  con- 
tract as  between  the  citizens  of  the  State.  But  it  can 
not  affect  the  rights  of  citizens  of  other  states,  nor  con- 
tracts made  before  its  passage.  Ogden  v.  Saunders,  12 
Wheat.,  214;  Cook  v.  Moffat,  5  How.,  205;  Sujdam  v. 
Broadnax,  6  Pet.,  761. 

A  discharge  under  a  foreign  bankruptcy  law  is  no  bar 
to  an  action  in  the  courts  of  this  country.  McMillan  v. 
Mcl^eill,  4  Wheat.,  209.  A  State  may,  Avhen  no  'Nsl- 
tional  bankrupt  law  is  in  force,  discharge  a  bankrupt 
from  the  obligations  of  a  future  contract,  but  not  a  pre- 
existing one,  and  then  only  between  its  own  citizens. 
Such  future  contract  is  made  in  view  of  the  law,  and 
the  law  is  a  part  of  it.     Id. 

But  where  a  creditor,  whether  of  the  State  in  which 


Sec.   8.]  BAIS^KEUPTCY  LAWS COINAGE.  101 

the  bankruptcy  proceedings  under  tlie  State  law  (there 
being  then  no  J^ational  bankrupt  law),  makes  himself  a 
party,  comes  in  and  proves  his  claim  and  takes  a  benefit 
under  judicial  proceedings  conducted  according  to  such 
law,  he  will  be  bound  by  it,  as  assenting  thereto,  and  the 
debtor  under  such  future  contract  will  be  discharged. 
Oilman  v.  Lockwood,  4  Wall.,  409;  Butler  v.  Gorely, 
146  U.  S.,  303 ;  Baldwin  v.  Hale,  1  Wall.,  223. 

Where  the  operation  of  a  State  bankruptcy  law  is  sus- 
pended by  the  fact  that  a  IsTational  bankruptcy  law  is  in 
force,  the  repeal  of  the  National  bankruptcy  law  leaves 
the  State  law  in  full  operation,  and  re-enactment  of  it 
not  necessary,     Butler  v.  Gorely,  146  U.  S.,  303. 

POWER  TO   COIN  MONEY  AND  REGULATE  VALUES. 

The  Congress  shall  have  power,     *     *     * 

"To  coin  money,  regulate  the  value  thereof,  and  of  for-     ittfi 
eign  coin,  and  fix  the  standard  of  weights  and  measures." 

This  power  is  correlated  to  the  prohibition  of  the 
States  coining  money,  or  making  anything  but  gold  and 
silver  coin  a  tender  of  payment  of  debts ;  and  when  that 
clause  is  considered,  the  decisions  on  that  point  will  be 
considered. 

The  principal  decisions  under  this  clause  have  grown 
out  of  the  power  of  Congress  to  make  its  treasury  notes 
a  legal  tender.  In  the  first  cases  that  came  before  the 
Supreme  Court,  it  was  held  that  the  act  of  Feb.  25, 


102  CONSTITUTION  OF  UNITED  STATES.  [Art.  I, 

1862  (Stat,  at  L.,  c.  33),  so  far  as  it  made  United 
States  notes  a  legal  tender  in  payment  of  debts  con- 
tracted prior  to  its  passage  was  unconstitutional  and 
void.  Willard  v.  Tayloe,  8  Wall.,  557;  McGlynn  v. 
Magran,  8  Wall.,  639.  Tlie  case  of  Hepburn  v.  Gris- 
wold,  8  Wall.,  603,  also  held  that  making  notes  a  legal 
tender  is  not  an  appropriate  means  for  the  exertion  of 
the  power  to  declare  and  carry  on  war,  or  any  other 
power  expressly  vested  in  Congress. 

But  these  cases  were  afterward  overruled. 

The  Acts  of  Congress  known  as  the  legal  tender  acts 
are  constitutional  both  as  to  debts  before  and  after 
their  passage.  Legal  Tender  Cases,  12  Wall.,  457; 
Dooley  v.  Smith,  13  Wall.,  604;  IN'orwick,  etc.,  E.  K.  v. 
Johnson,  15  Wall.,  195.  These  cases  dwelt  upon  the 
power  as  a  necessary  one  in  time  of  war. 

Congress  has  the  constitutional  power  to  make  treas- 
ury notes  a  legal  tender  of  payment  of  debts  in  time  of 
peace  as  well  as  in  time  of  war.  Juillard  v.  Green- 
man,  110  U.  S.,  421. 

POWER  TO  PUNISH  COUNTERFEITING. 

The  Congress  shall  have  power,     *     *     * 

"To  provide  for  the  punishment  of  counterfeiting  the 
securities  and  current  coin  of  the  United  States." 

This  power  may  be  exercised  to  forbid  the  bringing 
into  the  country  of  coins  in  the  similitude  of  the  coins  of 


Sec.  8.]  COUNTERFEITING POST  OFFICES.  103 

the  United  States.  United  States  v.  Marigold,  9  How., 
660. 

The  power  of  Congress  to  punish  counterfeiting  is 
not  exclusive.  The  States  have  power  to  pass  laws  to 
punish  the  passing  of  counterfeit  money.  !Fox  v.  State 
of  Ohio,  5  How.,  433. 

The  cases  construing  acts  of  Congress  against  coun- 
terfeiting, etc.,  are  U.  S.  v.  Gardner,  10  Pet.,  618;. 
U.  S.  V.  Cantril,  4  Cranch,  167;  U.  S.  v.  Howell,  11 
Wall.,  432 ;  U.  S.  v.  Turner,  7  Pet.,  132 ;  U.  S.  v.  Carll, 
105  U.  S.,  611;  U.  S.  v.  Brewster,  7  Pet.,  164;  U.  S. 
v.  Eandenbusch,  8  Pet.,  288. 

Congress  may  punish  the  counterfeiting  or  bringing 
foreign  coin  into  the  country.  U.  S.  v.  Marigold,  9 
How.,  560. 

And  may  punish  the  counterfeiting  of  securities  of 
foreign  governments.  U.  S.  v.  Arjona,  120  U.  S., 
479. 

POST   OFFICES   AND   KOADS. 

The  Congress  shall  have  power,     *     *     * 
"To  establish  post  offices  and  post-roads." 

1.  "The  power,"  says  Chief  Justice  Marshall,  "is  ex- 
ecuted by  the  single  act  of  making  the  establishment,  in 
a  strict  sense.  But  from  this  has  been  inferred  the 
power  and  duty  of  carrying  the  mail  along  the  post 
road,  from  one  post  office  to  another.     And  from  this. 


104  CONSTITUTION  OF  UNITED  STATES.  [Art.  I, 

implied  power  has  been  again  inferred  the  right  to  pun- 
ish those  who  steal  letters  from  the  post  office  or  rob  the 
mail.  It  may  be  said  with  some  plausibility  that  the 
right  to  carry  the  mail  and  to  punish  those  who  rob  is 
not  indispensably  necessary  to  the  establishment  of  a 
post  office  and  a  post  road.  This  right  is  indeed  essen- 
tial to  the  beneficial  exercise  of  the  power ;  but  not  in- 
dispensably necessary  to  its  existence.  McCulloch  v. 
Maryland,  4  Wheat.,  416. 

2.  The  power  to  establish  post  offices  and  post  roads 
is  conferred  upon  Congress,  but  the  power  has  been 
delegated  to  the  postmaster  general;  and  the  power  to 
discontinue  is  incident  to  the  power  to  establish  them. 
.Ware  v.  U.  S.,  4  Wall.,  617. 

S,  The  Court,  conceding  that  the  power  to  legalize  a 
l)ridge  built  across  a  navigable  stream  is  not  derived 
from  the  power  to  establish  post  roads,  finds  it  to  rest 
on  the  power  to  regulate  commerce.  Wheeling  Bridge 
Case,  18  How.,  431. 

4.  The  power  vested  in  Congress  "to  establish  post 
offices  and  post  roads"  has  been  practically  construed, 
since  the  foundation  of  the  government,  to  authorize 
not  merely  the  designation  of  the  routes  over  which  the 
mail  shall  be  carried,  and  the  offices  where  letters  and 
other  documents  shall  be  received  to  be  distributed  or 
forwarded,  but  the  carriage  of  the  mails  and  all  meas- 
ures to  secure  safe  and  speedy  transit  and  the  prompt 
•delivery  of  its  contents.     It  "embraces  the  regulation 


Sec.  8.]      POST  OFFICES  AND  POST  ROADS.         105 

of  the  entire  postal  system  of  the  country,"  and  em- 
powers Congress  to  decide  what  shall  or  shall  not  be  car- 
ried in  the  mail.  But  such  regulation  can  not  be  en- 
forced so  as  to  interfere  in  any  manner  with  the  free- 
dom of  the  press.  The  post  officials  can  not  open  let- 
ters or  sealed  packages  subject  to  letter  postage,  and  in- 
tended to  be  kept  free  from  inspection.  Such  can  only; 
be  opened  under  a  warrant,  the  same  as  if  in  the  owner's 
household.  They  are  exempt  from  search  and  seizure 
in  the  mail  except  upon  legally  issued  search  warrants. 
Ex  parte  Jackson,  96  U.  S.,  727. 

5.  The  power  to  establish  post  offices  and  post  roads 
is  not  confined  to  the  instrumentalities  of  the  postal  ser- 
vice known  or  in  use  when  the  Constitution  was 
adopted,  but  keeps  pace  with  the  progress  of  the  country 
and  adapts  itself  to  the  new  developments  of  time 
and  circumstances.  The  Act  of  Congress  (14  Stat,  at 
L.,  221,  K.  S.,  Sec.  5263)  so  far  as  it  aids  telegraph 
lines  along  post  roads  and  excludes  State  interference, 
is  a  valid  exercise  of  the  postal  power  of  Congress.  Pen- 
sacola  Tel.  Co.  v.  Western  Un.  Tel.  Co.,  96  U.  S.,  1. 

6.  The  power  to  establish  post  offices  and  post  roads 
carries  with  it  all  the  powers  necessary  to  make  the 
grant  effective,  including  the  power  to  forbid  the  use 
of  mails  to  carry  matter  used  in  the  dissemination  of 
crime  or  immorality,  whether  malum  in  se  or  malum 
prohihita;  and   Congress  can  exclude  lottery  matter 


106  CONSTITUTION  OF  UNITED  STATES.  [Art.  I, 

from  the  mails.     Ex  parte  Kapier,  143  U.  S.,  110; 
Horner  v.  U.  S.,  143  U.  S.,  207,  570. 

"As  under  the  Constitution  power  over  *  *  * 
the  transportation  of  the  mails  is  vested  in  the  ^National 
government,  and  Congress  by  virtue  of  such  grant  has 
assumed  actual  and  direct  control,  it  follows  that  the 
ITational  government  may  prevent  any  unlawful  and 
forcible  interference  therewith,"  and  may  invoke  the 
jurisdiction  of  the  courts  to  interfere  in  such  matters 
by  injunction  to  prevent  obstruction  of  the  transporta- 
tion of  the  mails,  and  the  courts  may  punish  dis- 
obedience of  the  injunction  as  a  contempt  of  court.  In 
re  Debs,  158  U.  S.,  564,  581. 

The  United  States  have  a  property  in  the  mails. 
They  are  not  mere  common  carriers,  but  a  government, 
performing  a  high  official  duty  in  holding  and  guarding 
its  own  property,  as  well  as  that  of  its  citizens  com- 
mitted to  its  care ;  for  a  very  large  portion  of  the  letters 
and  packages  conveyed  in  the  mails  consist  of  commun- 
ications to  or  from  the  officers  of  executive  depart- 
ments, or  members  of  the  legislature  on  public  service, 
or  in  matters  of  public  concern.  Searight  v.  Stokes, 
3  How.,  151,  169. 


Sec.  8.]         COPYRIGHT  AND  PATENT.  107 

THE  POWER  OF  COPYRIGHT  AND  PATENT. 

The  Congress  shall  have  power,     *     *     * 

"To  promote  the  progress  of  science  and  useful  arts,  by 
securing  for  limited  times  to  authors  and  inventors  the 
exclusive  right  to  their  respective  writings  and  discov- 
eries." 

The  power  of  Congress  to  legislate  on  the  s-ubject  of 
patents  is,  by  the  terms  of  the  Constitution,  plenary; 
and  as  there  can  be  no  restraints  on  its  exercise,  there 
can  be  no  limitation  on  the  right  of  Congress  to  modify 
them  at  pleasure,  so  that  the  rights  of  property  in  exist- 
ing patents  are  not  taken  away.  McClurg  v.  Kings- 
land,  1  How.,  202,  206.  Congress  may  make  special 
grants  (Bloomer  v.  Stolley,  5  McLean,  156),  and 
special  extensions.  Blouchard's  Factory  v.  Warner,  1 
Blatch.,  258 ;  Evans  v.  Eaton,  Pet.  C.  C,  322. 

In  the  United  States  an  author  has  no  exclusive  prop- 
erty in  a  book  or  published  work,  except  under  some  act 
of  Congress,  and  obtains  no  such  right  but  by  comply- 
ing with  the  acts  of  Congress  securing  the  right. 
Wheaton  v.  Peters,  8  Pet.,  591. 

The  power  thus  granted  is  domestic  in  its  character, 
and  necessarily  confined  within  the  limits  of  the  United 
States ;  and  the  patentee's  right  of  property  and  exclu- 
sive use  can  not  extend  beyond  the  limits  to  which  the 
law  itself  is  confined.     The  use  of  it  outside  the  juris- 


108  CONSTITUTION"  OF  UNITED  STATES.  [Art.  I, 

diction  of  the  United  States  is  not  an  infringement  of 
his  rights,  nor  is  the  use  of  it  on  a  foreign  vessel  law- 
fully entering  out  ports.  Brown  v.  Duchesne,  19  How., 
183. 

Congress  has  the  constitutional  right  to  protect  photo- 
graphs and  negatives  thereof  by  copyright,  if  they  are 
a  representation  of  original  intellectual  conceptions. 
Burrows-Giles  Lithographic  Co.  v.  Sarony,  111  U.  S., 
53. 

The  right  of  the  patentee,  under  letters  patent 
granted  by  the  United  States,  is  exclusive  of  the  govern- 
ment, as  well  as  others,  and  it  can  not  use  the  patented 
invention  without  license  or  compensation  to  the  owner. 
Hollister  v.  Benedict,  etc.,  Co.,  113  U.  S.,  59 ;  U.  S.  v. 
Burns,  12  Wall.,  246 ;  Cammeyer  v.  ISTewton,  94  U.  S., 
225 ;  James  v.  Campbell,  104  U.  S.,  356 ;  United  States 
V.  Palmer,  128  U.  S.,  262.  The  fact  that  the  inventor 
is  in  the  employ  of  the  government  at  the  time  of  the 
invention  makes  no  difference.  Solomons  v.  U.  S.,  137 
U.  S.,  342 ;  Belknap  v.  Schild,  161  U.  S.,  10.  An  of- 
ficer of  the  United  States  may  be  sued  for  such  in- 
fringement.     Id. 

Rights  secured  to  inventors  must  be  exercised  in  sub- 
ordination to  police  power  of  the  States;  but  where  a 
license  tax  to  sell  a  patented  article  discriminates 
against  non-residents  or  inventors  not  residing  in  the 
State,  or  their  agents,  it  is  void  as  in  conflict  with  the 
commerce  clause.     Webber  v.  Virginia,  103  U.  S.,  344. 


Sec.  8.]  COPYRIGHT  ais^d  patent.  109- 

When,  under  a  patent,  tangible  property  comes  into  ex- 
istence, its  use  is  subject  to  tbe  laws  of  the  State  to  the 
same  extent  as  other  property.  Letters  patent  were 
granted  for  "an  improved  burning  oil."  It  was  con- 
demned by  the  State  inspector  as  unsafe  and  the  inven- 
tor was  convicted  for  violating  the  State  statute.  Held,. 
no  interference  with  any  right  conferred  by  his  lettera 
patent.     Patterson  v.  Kentucky,  97  IT.  S.,  501. 

The  legislation  based  on  this  provision  regards  the 
right  of  property  in  the  inventor  as  the  medium  of  the 
public  advantage  derived  from  his  invention,  so  that  in 
every  grant  of  the  limited  monopoly  two  interests  are 
involved, — ^that  of  the  public  who  are  grantors  and  that 
of  the  patentee.  The  investigation  of  every  claim  is 
essentially  judicial.  Butterworth  v.  Hoe,  112  U.  S., 
59.  And  the  Secretary  of  the  Interior  has  no  power  to- 
reverse  the  action  of  the  Commissioner  of  Patents  in 
awarding  or  refusing  a  patent.  Id.  The  Court  of  Ap- 
peals of  the  District  of  Columbia  may  review  the  Com- 
missioner's decisions.     U.  S.  v.  Duell,  172  U.  S.,  676. 

Congress  passed  a  law  applicable  to  trade  marks.  19^ 
Stats,  at  L.,  141.  The  act  was  held  invalid,  as  a  trade- 
mark is  not  a  patent  nor  a  copyright ;  and  Congress  can 
legislate  upon  it  only  when  it  relates  to  commerce  with 
foreign  nations,  and  among  the  Indian  tribes,  and  the 
act  was  made  applicable  to  all  commerce.  Trademark 
Cases,  100  U.  S.,  82. 


110  COIS'STITUTIOI^  OF  UJ^ITED  STATES.  [Art.  I, 

INFERIOR  COURTS. 

The  Congress  shall  have  power,     *     *     * 

"To  constitute  tribunals  inferior  to  the  Supreme 
Court."  :  .j  Jl 

Congress  has  the  power  to  establish  circuit  and 
district  courts,  and  to  confer  on  them  equitable  juris- 
diction in  cases  coining  within  the  reach  of  Federal  jur- 
isdiction.    Livingston  v.  Story,  9  Pet.,  632. 

This  jurisdiction  is  to  be  exercised  uniformly 
throughout  the  United  States,  and  can  not  be  limited  in 
its  extent,  or  controlled  in  its  exercise  by  the  laws  of  the 
several  States.  U.  S.  v.  Howland,  4  Wheat.,  108 ;  Eus- 
sell  V.  Southard,  12  How.,  139;  'Neves  v.  Scott,  13 
How.,  268 ;  The  Lottawanna,  21  Wall.,  558 ;  Watts  v. 
Camors,  115  U.  S.,  353,  362;  Kirby  v.  Lake  Shore, 
€tc.,  Eailroad,  120  U.  S.,  130,  138. 

Courts  of  the  United  States  created  under  this  power 
are  all  of  limited  jurisdiction  but  are  not  technically 
speaking  inferior  courts,  whose  judgments  taken  alone 
are  to  be  disregarded.  Their  judgments  and  decrees 
are  binding  until  reversed,  and  are  not  coram  non 
judice,  though  no  jurisdiction  be  shown  in  the  record. 
McCormick  v.  SuUivant,  10  Wheat.,  192. 

No  court  of  the  United  States,  except  the  Supreme 
Court,  possesses  any  jurisdiction  not  given  by  the  legis- 
lative power.  U.  S.  V.  Hudson,  1  Cranch.,  32.  Con- 
sent of  parties  can  not  confer  it.     Pacific  R.  E.  v. 


Sec.  8.]  PIRACY.  Ill 

Ketchum,  3  Dall.  (U.  S.),  289;  Dewhurst  v.  Coul- 
thard,  3  Dall.  (U.  S.),  409 ;  "The  Lucy/'  8  Wall.,  307; 
Peoples'  Bank  v.  Calhoun,  102  U.  S.,  256.  But  the 
parties  may  admit  the  existence  of  facts  which  confer 
or  show  jurisdiction  and  the  court  may  act  judicially 
upon  such  decision.     Id. 

Other  cases  affecting  the  jurisdiction  of  the  inferior 
xjourts  will  be  treated  under  the  article  conferring  ju- 
dicial power. 

PIRACY  AND   FELONIES   ON   HIGH   SEAS. 

The  Congress  shall  have  power,     *     *     * 

"To  define  and  punish  piracies  and  felonies  comiiiitted 
on  the  high  seas,  and  offenses  against  the  law  of  nations.'* 

1.  Bobbery  committed  on  the  high  seas,  although 
«uch  robbery,  if  committed  on  land,  would  not  by  the 
laws  of  the  United  States  be  punishable  with  death,  is 
piracy  under  1  Stat,  at  L.,  113.  Congress  can  not  make 
that  piracy  which  is  not  piracy  by  the  laws  of  nations. 
U.  S.  V.  Palmer,  3  Wheat.,  610.  It  is  considered 
within  the  criminal  jurisdiction  of  all  nations.  U.  S. 
Y.  Pirates,  5  Wheat.,  184. 

2.  Manslaughter  is  not  punishable  in  the  courts  of  the 
United  States,  when  committed  in  a  river  within  the 
jurisdiction  of  a  foreign  sovereign.  United  States  v. 
Wiltberger,  5  Wheat.,  76. 

3.  The  Federal  courts  have  jurisdiction  of  murder 
or  robbery  on  the  high  seas,  though  on  board  a  vessel 


112  CONSTITUTIOIvr  OF  UNITED  STATES.  [Art.  I, 

not  belonging  to  a  citizen  of  the  United  States,  if  she 
.   had  no  national  character,  but  was  held  by  pirates  and 
not  lawfully  under  any  foreign  flag.     U.  S.  v.  Holmes, 
5  Wheat.,  412. 

4.  The  law  of  nations  requires  every  national  gov- 
ernment to  "use  due  diligence"  to  prevent  a  wrong  be- 
ing done  within  its  own  dominion  to  another  nation 
with  which  it  is  at  peace,  or  to  people  thereof ;  and  be- 
cause of  this,  the  obligation  of  one  nation  to  punish 
those  who,  within  its  own  jurisdiction,  counterfeit  the 
money  of  another  nation  has  long  been  recognized. 
U.  S.  V.  Arjona,  120  U.  S.,  479.  Congress  can  consti- 
tutionally enact  laws  to  punish  the  counterfeiting  of 
the  notes  of  a  foreign  bank  or  corporation.     Id. 

5.  The  act  of  Congress  (3  Stat,  at  L.,  E.  S.,  Sec. 
5358),  referring  to  the  laws  of  nations  for  a  definition 
of  crime  of  piracy  is  a  constitutional  exercise  of  the 
power  to  define  and  punish  that  crime.  United  States 
V.  Smith,  5  Wheat.,  153. 

6.  The  term  "high  seas,"  as  used  in  the  Federal  stat- 
ute (R.  S.,  §5346)  for  punishing  assaults  with  a  dan- 
gerous weapon  or  intent  to  commit  felony,  "upon  the 
high  seas,  or  in  any  arm  of  the  sea,  or  on  any  river^ 
haven,  creek,  basin,  or  bay,  within  the  admiralty  juris- 
diction of  the  United  States,  and  out  of  the  jurisdiction 
of  any  particular  State,"  applies  to  the  unenclosed 
waters  of  the  great  lakes,  which  are  connected  by  the 
Detroit  river.     U.  S.  v.  Rodgers,  150  U.  S.,  249. 


Sec.  8.]  WAR  POWER.  113 


THE  WAR  POWER. 

The  Congress  shall  have  power,     *     ^     * 

"To  declare  war,  grant  letters  of  marqne  and  reprisal, 
and  make  rules  concerning  captures  on  land  and  water." 

The  war  power. — "Upon  these  powers  no  restrictions 
are  imposed."  "The  power  to  declare  war  involves 
power  to  prosecute  it  by  all  the  means  and  in  any  man- 
ner by  which  war  may  legitimately  be  prosecuted."  It 
therefore  involves  the  right  to  seize  and  confiscate  all 
property  of  an  enemy  and  to  dispose  of  it  at  the  will  of 
the  captor.  This  is  and  always  has  been  an  undoubted 
belligerent  right.  Miller  v.  United  States,  11  Wall., 
268. 

Congress  is  not  deprived  of  these  great  powers  when 
the  necessity  for  their  exercise  is  called  out  by  domestic 
insurrection  and  internal  civil  war.  Tyler  v.  Defrees, 
11  Wall.,  331. 

The  exercise  of  the  war  power  in  time  of  civil  war  is 
so  restricted  that  neither  the  President,  nor  Congress, 
nor  the  judiciary  can  disturb  any  one  of  the  safeguards 
of  civil  liberty  incorporated  into  the  Constitution,  ex- 
cept so  far  as  the  right  is  given  to  suspend  in  certain 
cases  the  privilege  of  the  writ  of  habeas  corpus,     A 

citizen  not  connected  with  the  military  service  and  resi- 
8 


114  COK-STITUTIOIT  OF  UI^ITED  STATES.         [Alt.  I, 

dent  in  a  State  where  the  courts  are  open  and  in  tlie 
proper  exercise  of  their  jurisdiction,  can  not  be  tried, 
convicted  and  sentenced  but  by  the  courts  of  law.  Such 
person  can  not  be  regarded  as  a  prisoner  of  war.  Ex 
parte  Milligan,  4  Wall.,  2. 

British  property  found  in  the  United  States  on  land, 
at  the  commencement  of  hostilities  with  Great  Britain, 
can  not  be  condemned  in  an  enemy's  country,  without 
a  legislative  act,  authorizing  its  confiscation.  Brown 
V.  United  States,  8  Cranch,  110;  "The  Thomas  Gib- 
bons," 8  Cranch,  421. 

The  United  States  in  the  enforcement  of  their  consti- 
tutional rights  against  armed  insurrection,  have  not 
only  all  the  powers  of  a  sovereign,  but  also  of  the  most 
favored  belligerent.  As  belligerents  they  may  by  cap- 
ture enforce  their  authority,  and  as  sovereign  by  pardon 
and  restoration  to  all  civil  and  political  rights,  can  re- 
call their  revolted  citizens  to  allegiance.  Lamar  v. 
Browne,  92  U.  S.,  187. 

The  government  of  the  United  States  has  power  to 
permit  commercial  intercourse  with  an  enemy  in  time 
of  war,  and  to  provide  conditions  thereon  as  it  sees  fit. 
This  power  is  incident  to  the  power  to  declare  and  carry 
on  war.  It  seems  the  President  alone,  as  Commander- 
in-Chief,  may  exercise  this  power ;  but  there  is  no  doubt 
he  may  with  the  concurrent  authority  of  Congress. 
Hamilton  v.  Dillin,  21  Wall.,  73.     Among  some  of  the 


Sec.  8.]  WAR  POWER.  115 

extraordinary  war  powers  exercised  and  held  constitu- 
tional were ; 

(1)  The  emancipation  of  the  slaves,  within  all  the 
territory  held  by  the  insurgents.  This  was  sustained 
as  a  war  measure.  See  Texas  v.  White,  7  Wall.,  700 ; 
2  Story  on  Const.,  5th  ed.,  p.  Ill,  n. 

(2)  The  establishment  of  courts  by  military  author- 
ity within  insurgent  districts  occupied  during  the  civil 
war  by  the  Union  army.  The  Grapeshot,  9  Wall.,  129 ; 
Mechanics'  B'k  v.  Tin.  B'k,  22  Wall.,  676;  Coleman  v. 
Tennessee,  97  U.  S.,  509. 

(3)  The  appointment  of  provisional  governors  over 
States  in  revolt  until  restored  to  their  proper  practical 
relation  to  the  Union.     Texas  v.  White,  7  Wall.,  730. 

The  war  power  to  acquire  territory  by  conquest,  as 
an  incident  of  the  war  power,  will  be  considered  on 
page  269,  under  the  power  of  the  United  States  over 
territories. 

As  a  necessary  incident  to  the  power  to  declare  war, 
the  government  has  a  right  to  raise  and  transport  troops 
through  and  over  the  territory  of  a  State  or  territory  of 
the  Union.     Crandall  v.  ITevada,  6  Wall.,  35,  44. 

The  right  of  confiscation  exists  as  fully  in  case  of 
civil  war  as  in  foreign  war;  and  the  confiscation  acts 
of  Aug.  6,  1861,  and  July  7,  1862,  are  constitutional, 
as  an  exercise  of  war  powers.  Miller  v.  United  States, 
11  Wall.,  268 ;  Tyler  v.  Defrees,  id.,  331. 

The  government,  as  incident  to  the  war  power,  can 


116  CONSTITUTIOl^  OF  UI^ITED  STATES.  [Art.  I, 

permit  a  limited  commercial  intercourse  with  the 
enemy  and  prescribe  conditions  therefor.  Hamilton  v. 
Dillin,  21  Wall.,  73. 

In  a  civil  war  the  United  States  have  all  the  powers 
of  a  sovereign  and  of  the  most  favored  belligerent. 
Their  officers  may  capture  property  or  seize  private  prop- 
erty, in  obedience  to  the  order  of  commanding  general ; 
and  are  not  liable  to  private  action  for  acting  under 
such  orders.     Lamar  v.  Browne,  92  U.  S.,  187. 

The  President's  proclamation  of  Sept.  7,  1867,  did 
not  operate  as  a  dismissal  of  legal  proceedings  under 
the  confiscation  acts,  or  provide  for  the  restoration  of 
the  property  seized  thereunder,  nor  divest  the  title  of 
bona  fide  purchasers.  Semmes  v.  United  States,  91 
U.  S.,  21. 

LETTEKS  OF  MAKQUE  AND  REPRISAL. 

To  grant  letters  of  marque  and  reprisal. — These 
words  permit  the  grant  of  public  authority  to  persons, 
who  are  not  in  the  regular  service  of  the  country,  to  ex- 
ercise the  public  power  of  warring  upon  and  capturing 
vessels  of  the  enemy  upon  the  high  seas,  giving  rise  to 
the  habit  of  what  is  known  as  VJJL^i^^-^i^O-  ^^^  prac- 
tice has  in  former  times  been  much  pursued  of  giving  a 
commission  called  "letters  of  marque  and  reprisal"  to 
some  private  owner  of  a  vessel,  who  then  armed  it  and 
Bailed  the  seaSj  capturing  such  vessels  of  the  enemy  as 


Sec.  8.]  WAR  POWER.  117 

were  lawful  prize  of  war.  These  letters  make  acts  law- 
ful wLich  otherwise  would  be  piracy.  The  apology  for 
this  usage  is  (1)  that  it  gives  employment  to  seamen 
thrown  out  of  employment  by  the  war;  (2)  that  it 
strengthens  the  naval  power;  (3)  that  it  trains  seamen, 
to  venturesomeness  and  furnishes  good  material  for  re- 
cruits for  the  navy.  At  the  Convention  of  Paris  in 
1856  many  nations  agreed  to  the  proposition  that 
"privateering  is  abolished,"  and  that  is  now  the  general 
rule.  The  United  States  refused  to  concur  in  this,  as 
we  then  had  so  small  a  navy  and  so  much  sea  coast.  But 
in  the  war  with  Spain  the  Executive,  fully  in  accord 
with  the  spirit  of  the  age,  refused  to  grant  letters  to 
privateers. 

On  this  subject  Story  says:  "This  granting  of  let- 
ters of  marque  and  reprisal  is  often  a  measure  of  peace 
to  prevent  a  resort  to  war.  Thus,  individuals  of  a  na- 
tion sometimes  suffer  from  the  depredations  of  foreign 
potentates,  and  yet  it  may  not  be  deemed  either  expe- 
dient or  necessary  to  redress  such  grievances  by  a  gen- 
eral declaration  of  war.  Under  such  circumstances  the 
law  of  nations  authorizes  the  sovereign  of  the  injured 
individual  to  grant  him  this  mode  of  redress."  The 
words  mean,  letters  of  marque,  that  is,  permission  to 
pass  the  frontier,  and  "reprisal"  to  take,  to  make  him- 
self good  of  the  property  of  the  people  of  the  nation 
which  has  plundered  him.  In  time  of  war,  and  on  the 
seas,  letters  of  marque  and  reprisal  are  a  general  license 


118  COIS'STITUTION'  OF  UlS^ITED  STATES.         [Art.  I, 

to  capture  enemy's  goods  wherever  found.  But  now  it 
is  generally  agreed  that  neutral  ships  make  goods  neu- 
tral, unless  contraband  of  war,  that  is,  goods  such  as 
munitions  of  war  or  supplies  intended  for  the  use  of  the 
army. 

Under  this  clause  and  the  succeeding  one  Congress 
passes  laws,  and  the  Prize  Act,  when  in  force,  permits 
the  President  to  grant  letters  of  marque  and  reprisal 
and  to  revoke  and  annul  the  same. 

To  make  rules  concerning  captures  on  land  and 
water. — Under  this  power  Congress  passes  prize  acts, 
regulating  the  capture  of  enemy's  property  and  pro- 
vides prize  courts  which  determine  whether  the  cap- 
tured property  is  lawful  prize  of  war.  If  so,  it  is  sold 
and  the  money  divided,  part  going  to  the  officers  and 
crew,  the  law  fixing  the  proportion  to  each.  The  deci- 
sions of  the  Supreme  Court  mostly  expound  the  prize 
laws  or  law  of  nations,  rather  than  the  text  of  the  Con- 
stitution. 

THE  POWER  TO  RAISE  ARMIES. 

The  Congress  shall  have  power,     *     *     * 

"To  raise  and  support  armies;  but  no  appropriation  of 
money  to  that  use  shall  be  for  a  longer  term  than  two 
years." 

Congress  is  the  sole  judge  as  to  the  size  of  the  armies 
to  be  raised.     The  power  to  raise  armies  is  a  necessary 


Sec.  8.]  ARMIES  AISTD  I^AVIES.  110. 

incident  to  the  power  to  declare  war.  Under  the  ar- 
ticles of  Confederation  the  Congress  could  only  make 
requisitions  on  the  States  to  furnish  so  many  men 
clothed,  armed  and  equipped;  and  the  States  often 
failed  to  respond.  Hence,  the  power  "to  raise  and  sup- 
port" armies.  The  people  were  very  fearful  of  con- 
ferring so  dangerous  a  power  on  the  general  govern- 
ment ;  but  it  was  decided  in  the  convention  that  by  lim- 
iting the  appropriation  to  two  years  the  people  could 
choose  Kepresentatives  to  cut  off  the  supplies  if  they; 
thought  the  army  was  too  large  or  used  for  improper 
purposes. 

THE  POWER  TO  PROVIDE  A  NAVY. 

The  Congress  shall  have  power,     *     *     * 
"To  provide  and  maintain  a  navy." 

1.  "That  a  government,  which  possesses  the  broad 
power  of  war  which  ^may  provide  and  maintain  a  navy,' 
which  'may  make  rules  for  the  government  and  regula- 
tion of  the  land  and  naval  forces,'  has  power  to  punish 
an  offense  committed  by  a  marine,  on  board  a  ship  of 
war,  wherever  that  ship  may  lie,  is  a  proposition  never 
to  be  questioned  in  this  Court."  Ch.  J.  Marshall  in 
United  States  v.  Bevan,  3  Wheat.,  336. 

2.  In  the  exercise  of  this  power.  Congress  provided 
for  the  punishment  of  desertion  and  of  other  crimes  not 
specified  in  the  articles  which  should  be  punished  ac- 


120  CONSTITUTION  OF  UNITED  STATES.  [Art.  I, 

cording  to  the  laws  and  customs  in  such  cases  at  sea.  A 
seaman  was  charged  with  desertion  and  found  guilty  of 
attempting  to  desert,  the  Court  had  jurisdiction  over 
the  subject-matter  and  an  action  of  trespass  for  false 
imprisonment  will  not  lie  against  the  ministerial  offi- 
cer, who  executes  the  sentence  for  attempting  to  desert. 
Dynes  v.  Hoover,  20  How.,  65. 

3.  The  Acts  of  Congress  (K.  S.,  Sec.  1547)  author- 
ize the  Secretary  of  the  J^avy  to  establish  regulations 
for  the  navy  with  the  approval  of  the  President.  Such 
regulations  have  the  force  of  law.  Ex  'parte  Reed,  100 
U.S.,  13.  ,     . 

RULES  AND  EEGULATIONS  FOR  ARMY  AND  NAVY. 

The  Congress  shall  have  power,     *     *     * 

"To  make  rules  for  the  governnieiit  and  regulation  of 
the  land  and  naval  forces." 

1.  The  law  has  conferred  on  the  Secretary  of  War  the 
power  to  make  army  regulations  and  these,  when  in  con- 
formity to  the  laws  and  articles  of  war,  have  the  force 
of  law.  Gratiot  v.  United  States,  4  How.,  80;  Ex 
parte  v.  Reed,  100  U.  S.,  13. 

2.  The  authority  of  the  head  of  an  executive  depart- 
ment to  issue  orders  and  regulations  under  direction  of 
the  President  to  have  the  force  of  law  is  subject  to  the 
condition  that  they  conflict  with  no  act  of  Congress.  An 
order  by  the  Secretary  of  the  E'avy  that  a  service  shall 


Sec.  8.]  MILITIA.  121 

not  be  a  sea  service,  which  the  Congress  has  directed 
shall  be  a  sea  service,  is  invalid.  United  States  v.  Sy- 
monds,  120  U.  S.,  46. 

3.  Section  1547  of  the  K.  S.  passed  since  the  adop- 
tion of  the  E'avy  Eegulations  of  1870,  recognized  those 
regulations  as  being  in  force,  and  declared  that  they 
should  be  recognized  as  the  regulations  of  the  navy, 
subject  to  alterations  adopted  in  the  same  manner.  The 
recognition  must  be  understood  as  giving  them  the  sanc- 
tion of  law.  Smith  v.  Whitney,  116  U.  S.,  167,  citing 
United  States  v.  Maurice,  2  Brock.,  96,  105. 

CALLIIN^G  OUT  THE  MILITIA. 

The  Congress  shall  have  power,     *     *     * 

"To  provide  for  calling  forth  the  militia  to  execute  the 
laws  of  the  Union,  suppress  insurrections  and  repel  in- 
vasions.'^ 

The  Act  of  Pennsylvania,  March  28,  1814  (Sec.  21) 
provided  that  officers  and  privates  of  the  militia  of  that 
State  neglecting  or  refusing  to  serve,  when  called  into 
actual  service  pursuant  to  the  order  or  requisition  of 
the  President,  shall  be  liable  to  penalties  imposed  by  the 
Act  of  Congress  (1  Stat,  at  L.,  424),  or  to  any  penalties 
since  prescribed  or  thereafter  to  be  prescribed.  Held, 
not  repugnant  to  the  Constitution  of  the  United  States. 
Houston  V.  Moore,  5  Wheat.,  1.  It  is  here  held  that 
the  Constitution  intended  that  the  Congress  might  pro- 


122  CONSTITUTION  OF  UNITED  STATES.  [Art.  I, 

vide  for  calling  them,  forth;  and  that  the  State  might 
punish  those  who  refused  or  neglected  to  obey,  Judgea 
Story  and  Johnson  dissenting.  The  points  resolved  in 
this  and  later  opinions  appear  to  be : 

1.  That  under  the  Act  1795  (Stat,  at  L.,  Ch.  36,  Sec. 
1),  the  President  is  the  one  who  is  authorized  to  decide 
whether  the  militia  should  be  called  out  and  his  de- 
cision is  conclusive  upon  all  persons;  and  the  law  is 
constitutional.  Martin  v.  Mott,  12  Wheat.,  19.  In 
this  case  a  militiaman  had  refused  to  enter  the  service  of 
the  United  States  on  the  call  of  the  President.  He  had 
been  court-martialed,  found  guilty  and  his  property 
seized  to  satisfy  the  fine  imposed.  He  brought  replevin 
to  recover  the  property ;  and  the  plea  of  the  officer  justi- 
fying under  the  proceedings  was  demurred  to,  thus  rais- 
ing the  question  of  the  constitutionality  of  the  law. 

2.  The  State  ha^  the  power  to  control  and  regulate 
the  organization  of  the  military  bodies  and  associations 
except  when  they  are  authorized  by  the  United  States. 
Pressor  v.  Hlinois,  116  U.  S.,  252. 

3.  The  case  of  Luther  v.  Borden,  7  How.,  1,  is  an 
important  one.  The  facts  briefly  are:  Ehode  Island 
long  after  admission  into  the  Union  had  the  old  Colon- 
ial Charter  of  1663  for  her  Constitution.  It  restricted 
the  suffrage  to  freeholders,  and  the  representation  in 
the  legislature  was  grossly  unequal,  the  political  power 
virtually  in  a  few  hands,  who  refused  to  call  a  conven- 
tion to  amend  or  adopt  a  Constitution,  extending  the 


Sec.  8.]  MILITIA.  125 

suffrage  and  equalizing  the  representation.  The  dis- 
franchised people  and  their  sympathizers  called  a  con- 
vention (outside  of  law  and  without  legal  authority) ^ 
framed  a  Constitution  and  undertook  by  force,  under  a 
man  named  Dorr,  who  by  their  illegal  votes  had  been 
chosen  as  governor,  to  set  up  a  government.  The 
Charter  government  resisted.  There  was  martial  law 
declared;  and  Borden  by  order  of  his  superior  officers 
broke  and  entered  the  plaintiff  Luther's  house.  He  was 
sued  for  trespass  and  his  plea  was  that  he  acted  by  com- 
petent authority  under  the  Charter  government.  This 
raised  the  question  as  to  the  legality  of  the  two  govern- 
ments. The  question  came  to  the  Supreme  Court  of  the 
United  States,  which  held:  (1)  Congress  had  dele- 
gated to  the  President  by  an  earlier  act  (1  Stat,  at  L., 
424;  Act  Feb.  28,  1795)  the  power  to  decide  for  the 
purposes  of  that  act  whether  a  government  in  a  State 
was  the  duly  constituted  government  of  that  State.  (2) 
That  after  he  had  decided  which  was  such  government, 
the  courts  of  the  United  States  were  bound  to  follow  his 
decision.  (3)  That  the  government  of  a  State  has  the 
power  to  protect  itself  from  destruction  by  armed  re- 
bellion, by  declaring  martial  law;  and  that  the  State 
legislature  is  the  sole  judge  of  the  existence  of  the  exi- 
gency rendering  such  action  necessary.  (4)  The  state 
of  things  existing  was  that  martial  law  had  been  de- 
clared by  those  having  authority  to  declare  it ;  and  the 
act  complained  of  was  justified  by  such  authority. 


124  COIs^STITUTIO]^  OF  UNITED  STATES.  [Art.  I, 

During  the  war  of  1812,  to  which  several  of  the 
States  were  much  opposed,  the  States  claimed  that  their 
officers  were  in  command  of  and  subject  only  to  the  per- 
sonal orders  of  the  President,  not  to  the  officers  under 
him.  But  this  doctrine  was  long  since  given  up.  No 
claim  of  that  kind  was  made  but  regular  officers  were  in 
many  instances  placed  over  the  troops  raised  in  the 
States. 

OKGAN^IZING   AND    DISCIPLINING    THE    MILITIA. 

The  Congress  shall  have  power,     *     *     * 

"To  provide  for  organizing,  arming  and  disciplin- 
ing the  militia,  and  for  governing  such  part  of  them  as 
may  be  employed  in  the  service  of  the  United  States,  re- 
serving to  the  States  respectively,  the  appointment  of  the 
officers,  and  the  authority  of  training  the  militia  accord- 
ing to  the  discipline  prescribed  by  Congress." 

EXCLUSIVE    LEGISLATION    OVER    SEAT    OF    GOVERNMENT, 

ETC. 

The  Congress  shall  have  power,     *     *     * 

"To  exercise  exclusive  legislation  in  all  cases  whatso- 
ever, over  such  district  (not  exceeding  ten  miles  square) 
as  may,  by  cession  of  particular  States,  and  the  acceptance  of 
Congress,  become  the  seat  of  the  government  of  the  United 
States;  and  to  exercise  like  authority  over  all  places  pur- 
ijhased  by  the  consent  of  the  legislature  of  the  State  in 


Sec.  8.]  SEAT  OF  GOVERNMEI^T,  ETC.  125 

which  the  same  shall  be,  for  the  erection  of  forts,  maga- 
zines, arsenals,  dock-yards,  and  other  needful  buildings.'* 

The  District  of  Columbia  is  not  a  "State"  within  the 
meaning  of  that  term  as  used  in  the  Constitution ;  and 
its  citizens  can  not  sue  in  the  courts  of  the  United 
States  as  citizens  of  any  State.  Hepburn  v.  Ellzej,  2 
Cranch,  445. 

Congress  has  authority  to  impose  a  direct  tax  on  the 
District  of  Columbia,  in  proportion  to  the  census  di- 
rected to  be  taken  by  the  Constitution.  Loughborough 
V.  Lake,  5  Wheat.,  317. 

The  power  of  Congress  to  levy  and  collect  taxes, 
duties,  imposts  and  excises,  is  co-extensive  with  the  ter- 
ritory of  the  United  States.     Id. 

The  po^er  to  exercise  exclusive  legislation  in  all 
cases  within  the  district  includes  the  power  to  tax  it. 
Id.  Congress  in  the  exercise  of  the  right  of  taxation 
may  direct  that  half  the  amount  of  compensation 
awarded  to  owners  of  lands  taken  for  public  highways 
shall  be  charged  to  the  lands  benefited  by  the  highway. 
The  act  providing  for  a  permanent  highway  system  in 
the  District  of  Columbia  held  valid.  Parsons  v.  United 
States,  16Y  U.  S.,  324. 

After  the  cession  of  this  territory  by  Maryland  and 
Virginia,  Congress  had  the  same  power  that  both  States 
had  previously  possessed  to  modify  the  compact  between 
those  States  by  which  a  free  use  of  the  river  was  se- 


126  CONSTITUTION  OF  UNITED  STATES.  [Art.  I, 

cured  to  all  the  people  residing  in  its  borders.  George- 
town V.  Alexandria  Canal  Co.,  12  Pet,  91. 

The  counties  of  Washington  and  Alexandria  (prior 
to  the  retrocession  by  Congress  of  the  portion  of  the 
district  lying  in  Virginia)  constituting  the  district,  and 
stood  in  the  same  relation  to  each  other  as  counties  in 
the  same  State,  together  constituting  the  district;  and 
residents  of  one  county,  were  not  "beyond  seas"  with 
respect  to  each  other.  Bank  of  Alexandria  v.  Dyer,  14 
Pet.,  141. 

The  charter  of  the  city  of  Washington  did  not  au- 
thorize it  to  enforce  the  sale  of  lottery  tickets  in  States 
whose  laws  prohibit  such  sales.  Cohens  v.  Virginia,  6 
Wheat.,  264. 

A  police  regulation  by  act  of  Congress  relating  ex- 
clusively to  the  internal  trade  of  the  States,  can  have 
no  operation  where  as  in  the  District  of  Columbia  the 
legislative  authority  of  Congress  excludes  territorially, 
all  State  legislation.  United  States  v.  Dewett,  9  Wall., 
41. 

Congress  has  power  to  confer  on  the  city  of  Washing- 
ton authority  to  assess  upon  lot  owners  along  streets  the 
expense  of  repairing  the  pavements.  Willard  v.  Pres- 
bury,  14  Wall.,  676, 

The  validity  of  the  retrocession  of  the  County  of 
Alexandria  to  the  State  of  Virginia,  that  State  having 
been  in  possession  of  Virginia  since  1847,  can  not  now 
be  questioned.     Phillips  v.  Pryne,  92  U.  S.,  130. 


Sec.  8.]  SEAT  OF  GOVERNMENT,  ETC.  127 

When  the  United  States  acquires  lands  within  the 
limits  of  a  State  by  purchase  with  the  consent  of  the 
legislature  of  the  State  for  the  erection  of  forts,  maga- 
zines, arsenals,  etc.,  the  Constitution  confers  upon  them 
•exclusive  jurisdiction  of  the  tract  so  acquired ;  but  when 
they  acquire  such  lands  in  any  other  way  than  by  pur- 
chase with  consent  of  the  State  legislature,  their  ex- 
clusive jurisdiction  is  confined  to  the  erections,  build- 
ings and  land  used  for  the  purposes  of  the  Federal  gov- 
ernment. A  State  may  for  such  purpose  cede  to  the 
United  States  exclusive  jurisdiction  over  a  tract  of 
land;  and  may  prescribe  conditions  to  the  cession,  if 
not  inconsistent  with  the  effective  use  of  the  property, 
and  may  reserve  the  right  to  tax  private  property,  rail- 
road bridges,  corporate  franchises,  etc.  Fort  Leaven- 
worth E.  E.  Co.  V.  Lowe,  114  U.  S.,  525. 

The  right  to  use  the  streets  for  any  other  than  ordi- 
nary uses  must  proceed  from  Congress ;  and  a  railroad 
company  can  not  lay  its  tracks  in  or  across  the  streets 
without  permission  of  Congress.  District  of  Columbia 
V.  B.  &  P.  E.  E.  Co.,  114  U.  S.,  453. 

The  National  Homes  for  Soldiers  are  under  control 
of  Congress,  and  State  laws  as  to  use  of  oleomargarine 
in  hotels,  eating  houses,  and  the  like  do  not  apply  to 
them.     Ohio  v.  Thomas,  173  U.  S.,  276. 


128  CONSTITUTION  OF  UNITED  STATES.         [Art.  I, 

THE  COEFFICIENT  OE  INCIDENTAL  POWEES  OF  CONGEESS. 

The  Congress  shall  have  power,     *     *     * 

"To  make  all  laws  which  shall  be  necessary  and  proper 
for  carrying  into  execution  the  foregoing  powers,  and  all 
other  powers  vested  by  this  Constitution  in  the  govern- 
ment of  the  United  States,  or  in  any  department  or  officer 
thereof." 

Congress  must  possess  the  choice  of  means  and  must 
be  empowered  to  use  any  means  which  are  in  fact  con- 
ducive to  the  exercise  of  the  power  granted  by  the  Con- 
stitution.    United  States  v.  Fisher,  2  Cranch,  358. 

If  the  end  be  within  the  scope  of  Congressional 
power,  all  means  appropriate  and  plainly  adapted  to 
that  end,  not  prohibited  by  the  letter  or  spirit  of  the 
Constitution,  are  constitutional.  McCuUoch  v.  Mary- 
land, 4  Wheat.,  316;  Prigg  v.  Pennsylvania,  16  Pet., 
639. 

The  end  being  legitimate.  Congress  can  judge  of  the 
necessity  of  the  means.     Id. 

Instances  of  implied  'powers. — Congress  may  incor- 
porate a  bank.  McCuUoch  v.  Maryland,  4  Wheat., 
316.  May  make  United  States  treasury  notes  a  legal 
tender  in  time  of  war  or  peace.  Legal  Tender  Cases, 
110  Wall.,  4'21,  overruling  Hepburn  v.  Griswold,  8 
Wall.,  603  (se-e  ante,  p.  36).  This  is  incident  to  the 
power  to  regulate  the  currency.     110  Wall.,  438. 


Sec.  8.]  IIS-CIDENTAL  POWERS.  129 

States  may  tax  shares  of  stock  of  iN'ational  banks,  as 
this  does  not  impair  their  usefulness  as  an  instrumen- 
tality to  carry  out  the  powers  of  the  government.  !N"at. 
Bank  v.  Commonwealth,  9  Wall.,  353. 

The  interstate  commerce  act  is  constitutional,  power 
to  pass  it  being  implied  from  the  power  to  regulate  com- 
merce among  the  States.  Interstate  Com.  v.  Brenson, 
154  U.  S.,  472,  473 ;  In  re  Debs,  158  U.  S., 378. 

The  Congress  may,  as  an  incident  to  the  power  to 
carry  on  war,  provide  that  the  operation  of  the  statute 
of  limitations  shall  be  suspended  during  the  war. 
Stewart  v.  Kohn,  11  Wall.,  507. 
/^  The  Congress  may  make  or  authorize  contracts  witK 
individuals  or  corporations  for  services  to  the  govern- 
ment ;  may  grant  aids  by  money  or  land  in  preparation 
for  and  in  the  performance  of  such  services;  may  ex- 
empt in  its  discretion,  the  agencies  employed  in  such 
service  from  State  taxation,  which  will  prevent  or  im- 
pede the  performance  of  them;  yet  in  the  absence  of 
such  exempting  legislation,  the  exemption  can  not  be 
applied  to  a  corporation  created  by  State  law,  exercis- 
ing its  franchise  and  holding  its  property  therein, 
m.erely  because  of  the  employment  in  the  service  of  the 
government.   Thompson  v.  Pac.  E.  K.  Co.,  9  Wall.,  579. 

The  exemption  of  agencies  depends  on  the  effect;; 
whether  the  tax  prevents  or  deprives  the  agency  to  serve 
the  government  or  hinders  the  efficient  exercise  of  the 
9 


130  COISrSTITUTION  OF  UNITED  STATES.  [Art.  1, 

power  to  serve  the  government.  K.  E.  Co.  v.  Peniston, 
18  Wall.,  5. 

Congress  may  pass  non-intercourse  acts,  under  the 
war  power.     Hamilton  v.  Dillin,  21  Wall.,  93. 

The  Congress  may,  as  an  aid  to  the  execution  of  the 
revenue  laws,  provide  for  the  punishment  of  persons  in- 
terfering by  threats  or  otherwise,  with  the  right  to  in- 
form a  United  States  marshal  of  a  violation  of  such 
laws.     In  re  Quarles,  158  U.  S.,  507. 

And  Congress  may  prohibit  the  mailing  of  letters  and 
circulars  concerning  lotteries.  In  re  Jackson,  96  U.  S., 
Y27. 

The  power  to  dispose  of  the  public  lands  includes  the 
power  to  lease  for  mining  purposes.  U.  S.  v.  Gratiot, 
14  Pet.,  536. 

The  power  to  erect  buildings  for  public  or  !N"ational 
use  includes  the  power  to  condemn  lands  for  the  pur- 
pose (Kohl  V.  U.  S.,  91  U.  S.,  367,  373)  in  a  State  or 
in  an  Indian  reservation.     33  Fed.  Kep.,  911. 

The  power  to  levy  an  income  tax  includes  the  power 
to  seize  or  distrain  property  to  collect  it.  Springer  v. 
U.  S.,  102  U.  S.,  593. 

Congress  may  pass  laws  making  it  a  felony  or  crime 
to  conspire  to  injure  prisoners  in  the  custody  of  mar- 
shals.    Logan  V.  U.  S.,  144  U.  S.,  283. 

And  may  pass  laws  prohibiting  the  receiving  by  a 
Pederal  officer  of  contributions  for  political  campaigns. 
Ex  parte  Curtis,  106  U.  S.,  371. 


Sec.  8.]  SOVEEEIGN  POWERS.  131 

And  may  give  debts  due  the  United  States  a  prefer- 
ence over  debts  to  other  creditors.  U.  S.  v.  Fisher,  2 
Cranch,  396. 

And  may  create  a  municipal  corporation  within  the 
District  of  Cohimbia,  but  can  endow  it  only  with  author* 
ity  to  exercise  municipal  powers.  Where  it  exceeds 
those  powers,  as  where  it  exacts  a  license  tax  on  trades 
and  professions  from  commercial  agents  soliciting 
sales  of  goods  on  behalf  of  vendors  doing  business  out- 
side the  district,  such  tax  is  void  as  such  power  can 
not  be  delegated  to  it.  Stoutenburg  v.  Hennick,  129 
U.  S.,  141. 

Congress  may  pass  acts  to  prevent  unlawful  occu- 
pancy of  the  public  lands.  With  respect  to  the  public 
lands  within  the  limits  of  a  State,  the  United  States 
have  the  right  of  an  ordinary  proprietor  to  maintain 
possession  and  prosecute  trespassers,  and  Congress  may 
legislate  for  the  protection  of  the  lands  and  may  sue  and 
enjoin  encroachment.  Camfield  v.  United  States,  167 
U.  S.,  578. 

POWEBS  INCIDENT  TO  SOVEREIGNTY. 

There  are  certain  implied  powers  resulting  from  the 
fact  that  the  United  States  constitute  a  sovereignty. 
Among  these  may  be  mentioned : 

The  right  to  sue.  This  is  a  natural  incident  result- 
ing from  the  sovereign  character  of  the  ITational  gov- 


132  COJS^STITUTIOI^  OF  UNITED  STATES.  [Art.  I, 

eminent.  Dngan  v.  United  States,  3  Wheat.,  173, 
179,  180. 

The  right  to  enter  into  contract.  United  States  v. 
Tingrj,  5  Pet,  115. 

Congress  may  punish  offenses  committed  on  ships  of 
war,  by  persons  not  in  the  military  or  naval  service, 
whether  in  port  or  at  sea,  for  jurisdiction  on  board  of 
public  ships  is  everywhere  deemed  exclusively  to  belong 
to  the  sovereignty.  United  States  v.  Bevan,  3  Wheat., 
288. 

May  pass  exclusive  acts  to  shut  out  Chinese.  Chinese 
Exclusion  Cases,  130  U.  S.,  581. 


THE  SLAVE  TRADE.  f 

SECTioiir  9.  "The  migration  or  importation  of  such  per- 
sons as  any  of  the  States  now  existing  shall  think  proper 
to  admit,  shall  not  be  prohibited  by  the  Congress  prior  to 
the  year  one  thousand  eight  hundred  and  eight,  but  a  tax 
or  duty  may  be  imposed  on  such  importation,  not  exceeding 
ten  dollars  for  each  person." 

This  clause  refers  to  the  slave  trade  existing  at  the 
time  in  the  United  States  and  Europe ;  and  sanctioned 
such  importation  until  forbidden  by  Congress.  ,  Dred 
Scott  Case,  19  How.,  411. 


Sec.  9.]  HABEAS  COEPUS.  133 

SUSPEK^SION  OF  THE  WRIT  OF  HABEAS  CORPUS. 

"The  privilege  of  the  writ  of  habeas  corpus  shall  not  be 
suspended,  unless  when  in  cases  of  rebellion  or  invasion, 
the  public  safety  may  require  it." 

The  President  suspended  the  writ  of  habeas  corpus 
as  an  executive  act,  at  the  breaking  out  of  the  rebellion. 
His  power  to  do  so  was  denied  by  Chief  Justice  Taney. 
Ex  parte  John  Merryman,  Taney,  246 ;  by  the  Supreme 
Court  of  Wisconsin  in  Kemp's  Case,  16  Wis.,  359,  and 
by  other  courts.  The  courts  held  that  Congress  might 
authorize  the  suspension;  and  Congress  passed  a  law 
authorizing  the  suspension  of  the  writ  by  the  President 
when  in  his  judgment  the  public  safety  required  it,  dur- 
ing the  period  covered  by  the  war  of  the  rebellion.  This 
act  was  held  constitutional  by  the  courts ;  among  them, 
In  re  Oliver,  17  Wis.,  681. 

The  suspension  of  the  privilege  of  the  writ  of  habeas 
corpus  does  not  suspend  the  writ  itself.  By  this  is 
meant  that  the  court  issues  the  writ  just  as  if  the  priv- 
ilege had  not  been  suspended ;  and  on  the  return  made 
of  the  writ  the  court  decid-es  whether  the  party  applying 
is  denied  the  writ  by  the  act  of  suspension.  Ex  parte 
Milligan,  4  Wall.,  2,  130. 

Congress  can  not  invest  a  military  commission  or- 
ganized in  a  State  not  in  rebellion,  in  which  the  Federal 
courts  are  open,  and  in  the  proper  unobstructed  exer- 


134  COI^STITUTION  OF  UI^ITED  STATES.  [Art.  I, 

cise  of  judicial  functions,  with  jurisdiction  to  try,  con- 
vict and  sentence  for  any  criminal  offense,  a  person  who 
is  neither  a  resident  of  rebellious  State,  nor  a  prisoner 
of  war,  nor  in  the  military  or  naval  service.  Ex  parte 
Milligan,  4  Wall.,  2. 

The  Supreme  Court  in  Ex  parte  Yallandigham,  1 
Wall.,  242,  held  it  had  no  jurisdiction  to  issue  the  writ 
of  habeas  corpus  to  review  or  reverse  the  proceedings  of 
a  military  commission. 

The  Supreme  Court  can  issue  a  writ  of  habeas  cor- 
pus to  a  military  commission  to  produce  a  prisoner  held 
on  a  charge  of  murder.     Ex  parte  Yerger,  8  Wall.,  85. 

ISToTE. — As  most  of  the  cases  on  habeas  corpus  relate 
to  the  jurisdiction  to  issue  the  writ  rather  than  the  sus- 
pension of  it,  they  will  be  considered  under  the  section 
relating  to  jurisdiction  of  the  Supreme  Court.  Eor  a 
full  citation  of  authorities  on  the  subject  of  habeas 
corpus,,  under  the  acts  of  Congress,  see  Gould  &  Tucker's 
Notes  to  U.  S.  K.  S.,  Sees.  759,  764. 

BILLS  OF  ATTAINDER  AND  EX  POST  FACTO  LAWS. 

"No  bill  of  attainder  or  ex  post  facto  law  shall  be 
passed." 

''Bills  of  attainder/^  says  Story,  "as  they  are  techni- 
cally called,  are  such  special  acts  of  the  legislature  as  in- 
flict capital  punishment  upon  persons  supposed  to  be 
guilty  of  high  offenses,  such  as  treason  and  felony,  with- 


See.  9.]     ATTAINDER  AXD  EX  POST  FACTO  LAWS.  135 

out  any  conviction  in  tlie  ordinary  course  of  judicial 
proceedings.  If  an  act  inflicts  a  milder  degree  of  pun- 
ishment  than  deatli  it  is  called  'a  bill  of  pains  and  pen- 
alties.' '' 

But  a  definition  was  given  by  Chief  Justice  Marshall 
in  Fletcher  v.  Peck,  6  Cranch,  87,  where  he  says :  "A 
bill  of  attainder  may  affect  the  life  of  an  individual  or 
may  confiscate  his  estate,  or  both."  This  was  a  favorite 
resort  of  tyranny  to  be  rid  of  troublesome  subjects^ 
by  attainting  them,  and  having  the  attainder  work  cor- 
ruption of  blood  and  forfeiture  of  estate,  so  that  one's; 
life  and  estate  might  be  taken  and  his  children  out- 
lawed. As  a  power  liable  to  abuse  in  times  of  strong 
public  excitement,  partisan  passion  or  popular  preju- 
dice, it  was  wisely  forbidden  by  the  Constitution  to  the 
Congress  and  to  any  State  to  pass  such  laws. 

The  power  to  banish  from  the  State  and  confiscate 
property  is  not  attainder.  Cooper  v.  Telfair,  4  DalL, 
14.  This  was  a  law  passed  before  the  adoption  of  the 
Constitution. 

"A  bill  of  attainder  can  be  only  for  crimes  already 
committed ;  and  a  law  is  not  ex  post  facto,  unless  it  looks 
back  to  an  act  done  before  its  passage."  Ch.  J".  Mar- 
shall in  Ogden  v.  Saunders,  12  Wheat.,  335. 

The  phrase  ex  post  facto  laws  is  not  applicable  to  civil 
laws  but  to  penal  and  criminal  laws,  which  can  punish 
no  party  for  acts  antecedently  done,  which  were  not 
punishable  at  all  when  committed  or  not  punishable  to 


136  CONSTITUTION  OF  UNITED  STATES.         [Art.  I, 

tLe  extent  or  in  the  manner  prescribed.  Watson  v. 
Mercer,  8  Peters,  110,  citing  Calder  v.  Bull,  3  Dall., 
386;  Fletcher  v.  Peck,  6  Cranch,  87;  Ogden  v.  Saun- 
ders, 12  Wheat.,  266;  Satterlee  v.  Matthewson,  2  Pet., 
380. 

A  resolution  of  the  legislature  of  a  State  or  a  law, 

« 

setting  aside  a  decree  of  a  court  of  probate  or  granting  a 
new  hearing  with  liberty  of  appeal  is  not  an  ex  post  facto 
law.     Calder  v.  Bull,  supra. 

A  law  passed  after  death  of  a  citizen  compelling 
executors  to  pay  a  tax,  from  property  on  their  lands 
in  a  State,  or  property  out  of  the  State,  is  not  ex  post 
facto.     Carpenter  v.  Pennsylvania,  17  How.,  456. 

A  statute  which  simply  authorizes  the  imposition  of 
a  tax  according  to  a  previous  assessment  is  not  invalid. 
An  act  may  be  retrospective  and  not  be  ex  post  facto. 
Xocke  V.  New  Orleans,  4  Wall.,  172. 

The  clauses  of  the  Constitution  adopted  in  the  State 
of  Missouri  after  the  civil  war,  which  deprived  priests 
and  clergymen  of  the  right  to  preach  and  teach  because 
of  antecedent  sympathy  with  the  rebellion,  held  ex  post 
facto  and  void.     Cummings  v.  Missouri,  4  Wall.,  277. 

An  act  of  Congress  debarring  persons  from  practicing 
in  the  Federal  courts,  unless  they  took  an  oath  that  they 
Lad  not  voluntarily  given  aid  or  countenance  to  the  re- 
bellion, held  void  as  ex  post  facto.  Ex  parte  Garland, 
4  Wall.,  333. 

The  Constitution  of  the  State  of  Missouri,  adopted 


Sec.  9.]     ATTAI]S^DER  AND  EX  POST  FACTO  LAWS.  137 

in  1865,  provided  that  no  person  should  be  prosecuted 
in  a  civil  action  for,  or  on  account  of  any  act  by  him 
done,  or  performed,  after  January  1,  1861,  by  virtue  of 
military  authority  vested  in  him  by  the  government  of 
the  United  States  or  State,  or  in  pursuance  of  orders 
received  by  him  from  any  person  vested  with  such 
authority.  It  also  provided  that  the  immunity  of  the 
section  might  be  pleaded  in  bar  of  any  action  or  pro- 
ceeding begun  before  or  after  the  adoption  of  the  sec- 
tion. It  was  held  not  an  ex  post  facto  law  nor  a  bill  of 
attainder,  nor  an  act  impairing  the  obligation  of  a  con- 
tract.    Drehman  v.  Stifle,  8  Wall.,  595. 

An  act  of  West  Virginia,  which  deprived  a  person  of 
a  right  for  past  misconduct  without  judicial  trial,  par- 
took of  the  nature  of  a  bill  of  pains  and  penalties  and 
was  unconstitutional.  Pierce  v.  Carskadon,  16  Wall., 
234. 

A  statute  in  'New  York  passed  in  1895,  prohibited 
any  one  from  practicing  medicine,  who  had  ever  been 
convicted  of  felony.  II.  had  been  found  guilty  and  con- 
victed before  this  statute  in  1878  of  procuring  an  abor- 
tion. Held,  in  Supreme  Court  of  the  State  and  in  the 
Supreme  Court  of  the  United  States  that  this  was  a 
reasonable  police  regulation  and  not  an  ex  post  facto 
law.  Hawker  v.  New  York,  170  U.  S.,  201.  Several 
judges  dissenting. 

"The  inhibition  upon  the  passage  of  ex  post  facto 
laws  does  not  give  a  criminal  a  right  to  be  tried,  in  all 


138  CONSTITUTIOI^  OF  UNITED  STATES.         [Art.  I, 

respects,  by  the  law  in  force  when  the  crime  charged 
was  committed.  The  mode  of  trial  is  always  under 
legislative  control,  subject  only  to  the  condition  that  the 
legislature  may  not  under  the  guise  of  establishing 
modes  of  procedure  and  prescribing  remedies,  violate 
the  accepted  principles  that  protect  an  accused  person 
against  ex  post  facto  enactments."  Gibson  v.  Missis- 
sippi, 162  U.  S.,  665. 

A  statute  which  simply  enlarges  the  class  of  persons 
which  may  be  competent  to  testify,  is  not  ex  post  facto 
in  its  application  to  offenses  previously  committed ;  for 
it  does  not  attach  criminality  to  any  act  previously 
done,  which  when  done  did  not  violate  law,  nor  does  it 
alter  the  punishment  or  lessen  the  amount  of  proof 
necessary.  It  merely  alters  the  mode  of  procedure  in 
which  the  accused  has  no  vested  right.  Hopt  v.  Utah, 
110  U.  S.,  574. 

The  prescribing  of  different  modes  of  procedure,  and 
the  abolition  of  courts  and  creation  of  new  ones,  leav- 
ing untouched  all  the  substantial  protections  with  which 
the  existing  law  surrounds  the  accused,  is  not  an  ex 
post  facto  law,  as  meant  in  the  Constitution.  Duncan 
V.  Missouri,  152  U.  S.,  377. 

The  act  of  March  1,  1889  (25  Stat,  at  L.,  785,  Ch. 
333),  which  subjects  persons  charged  with  murder 
committed  under  the  exclusive  jurisdiction  of  the 
United  States,  but  not  within  any  State,  to  trial  in  a 
judicial  district  different  from  the  one  in  which  they 


Sec.  9.]    ATTAIIiTDEE  AND  EX  POST  FACTO  LAWS.  139 

might  have  been  tried  at  the  time  the  offense  was  com- 
mitted is  not  an  ex  post  facto  law,  as  a  change  of  the 
place  of  the  trial  is  not  involved  in  any  of  the  defini- 
tions of  an  ex  post  facto  law.  Cook  v.  United  States^ 
138  U.  S.,  157. 

The  statute  of  a  State  authorizing  the  comparison  of 
disputed  hand  writing  with  anv  writing  proved  to  be 
genuine  is  not  an  ex  post  facto  law,  in  its  application  as 
altering  the  rules  of  evidence  in  existence  at  the  time 
of  the  commission  of  the  offense.  Thompson  v.  Mis- 
souri, 171  U.  S.,  380. 

An  act  of  Congress  approved  in  the  afternoon  raised 
the  duty  on  tobacco,  and  imposed  a  fine  for  removing  it 
from  the  warehouse  without  the  stamp  to  show  that  the 
tax  had  been  paid.  Held,  that  this  act  would  operate 
as  ex  post  facto  as  to  tobacco  removed  the  same  day  at  an 
earlier  hour.     Burgess  v.  Salmon,  97  U.  S.,  381. 

The  decisions  as  to  ex  post  facto  laws  are  made  under 
the  two  clauses,  one  forbidding  Congress  to  pass  such 
laws,  the  other  forbidding  the  States  from  passing  the 
like.  Instances  of  State  ex  post  facto  laws  and  decisions 
relating  to  the  same  will  be  found  on  page  146.  In 
either  case  the  Supreme  Court  can  review  the  decision, 
in  the  exercise  of  its  appellate  jurisdiction. 


140  CONSTITUTIOIS"  OF  UNITED  STATES.  [Alt.  I, 

DIRECT  TAXES^  ETC.,  ETC. 

"No  capitation,  or  other  direct  tax,  shall  be  laid  unless 
in  proportion  to  the  census  or  enumeration  hereinbefore 
directed  to  be  taken." 

See  cases  cited  under  Section  2,  Article  I,  ante, 
p.  8. 

In  Loughborough  v.  Blake,  5  Wheat.,  317,  this  ques- 
tion arose.  The  Act  of  Congress  laid  a  direct  tax  on 
all  the  States.  A  later  act  of  the  same  year  laid  a  di- 
rect tax  on  the  District  of  Columbia,  according  to  the 
rule  of  apportionment.  This  was  contested  in  the  above 
case.  It  was  held  that  Congress  could  lay  such  tax  on 
the  District  of  Columbia ;  but  if  laid  it  must  be  accord- 
ing to  the  rule  of  apportionment.  In  this  opinion  oc- 
curs the  dictum  of  Chief  Justice  Marshall  that  the  ter- 
ritories are  part  of  the  United  States  and  subject  to  the 
same  rule  as  to  uniformity  of  imposts  and  duties,  which 
is  now  under  public  discussion.  He  decides  that  the 
tax  laid  on  the  District  of  Columbia  was  legal.  But  he 
argued  if  it  could  not  rest  on  the  9th  section,  it  could 
rest  on  the  power  of  exclusive  legislation  given  to  Con- 
gress over  the  District. 

The  "License  Tax  Cases,"  5  Wall.,  462,  settle  the 
principle  that  the  license  taxes  imposed  by  the  internal 
revenue  law,  and  the  prohibitions  against  carrying  on 
business  without  such  licenses,  do  not  violate  the  Con- 
stitution. 


Sec.  9.]         EXPORTS  FROM  STATES.  141 

The  income  tax  of  1864  (13  Stat,  at  L.,  218)  was 
held  not  a  direct  tax ;  but  it  was  said  that  "direct  taxes" 
are  only  capitation  taxes  and  taxes  on  real  estate. 
Springer  v.  United  States,  102  U.  S.,  586. 

An  income  tax  which  levies  a  tax  upon  the  income  of 
real  estate,  or  upon  the  income  derived  from  municipal 
bonds,  is  invalid.  Pollock  v.  Farmers'  Loan  &  Trust 
Co.,  157  U.  S.,  429 ;  158  U.  S.,  601.  The  reasoning 
of  the  court  is  that  the  tax  on  rents  of  land  is  a  "direct 
tax;"  and  that  the  tax  on  the  income  derived  from 
municipal  bonds  tends  to  cripple  the  powers  of  the  sub- 
divisions of  the  State  government. 

ARTICLES  EXPORTED  FROM  THE  STATES. 

"No  tax  or  duty  shall  be  laid  on  articles  exported  from 
any  State." 

The  acts  of  Congress  of  July  20,  1868  (15  Stat,  at 
L.,  157),  and  June  6,  1872  (17  Stat,  at  L.,  254),  so  far 
as  they  relate  to  snuff  and  tobacco  intended  for  exporta- 
tion, do  not  impose  a  stamp  tax  or  duty  by  stamp  on  ex- 
ports within  the  meaning  of  that  clause  of  the  Constitu- 
tion which  declares  that  "no  tax  or  duty  shall  be  laid  on 
articles  exported  from  any  State."  Pace  v.  Burgesa, 
92  U.  S.,  372.  The  stamp  required  by  the  act  was  in- 
tended  to  prevent  fraud  and  to  relieve  it  from  taxation 
to  which  other  tobacco  was  subjected.  Id.  Turpin  v. 
Burgess,  117  U.  S.,  504.     An  excise  laid  on  tobacco  be- 


142  COITSTITUTIOIir  OF  UNITED  STATES.         [Art.  I, 

fore  its  removal  from  the  factory  is  not  such  duty  on 
exports.  Id.  The  prohibition  has  reference  to  the  im- 
position of  duties  on  goods  by  reason  of  or  because  of 
their  exportation  or  intended  exportation  or  whilst  be- 
ing exported,  and  does  not  affect  their  taxation  as  part 
of  the  general  mass  of  property  in  a  State.  Coe  v.  Er- 
rol,  116  U.  S.,  517. 

The  provisions  of  the  E.  S.,  Sec.  3330,  for  the  with- 
drawal of  distilled  spirits  from  bonded  warehouses  for 
exportation  in  the  original  casks,  and  allowing  a  tax  to 
be  assessed  upon  the  deficiency  by  evaporation  after  the 
giving  of  an  exportation  bond,  is  not  a  violation  of  the 
clause  prohibiting  a  tax  upon  articles  exported  from  the 
State,  as  the  property  is  not  yet  in  process  of  exporta- 
tion on  the  mere  giving  an  exportation  bond.  Thomp- 
son V.  United  States,  142  U.  S.,  471. 

NO  PREFERENCE  OF  ONE  STATE  OVER  ANOTHER. 

"No  preference  shall  be  given  by  any  regulation  of 
commerce  or  revenue  to  the  ports  of  one  State  over  those 
of  another;  nor  shall  vessels  bound  to,  or  from,  one  State, 
be  obliged  to  enter,  clear,  or  pay  duties  in  another." 

This  clause  does  not  prohibit  a  municipal  corpora- 
tion owning  improved  wharves  and  other  artificial 
means  which  it  maintains  at  its  own  cost,  for  the  bene- 
fit of  those  engaged  in  commerce  upon  its  public  navi- 
gable waters  of  the  United  States,  from  charging  and 
collecting  reasonable  fees  for  wharfage.     Packett  Co.  v. 


Sec.  9.]  APPKOPRIATIOI^S.  143 

Keokuk,  95  U.  S.,  80;  Packet  Co.  v.  St.  Louis,  100 
U.  S.,  423 ;  Packet  Co.  v.  Catlettsburg,  105  U.  S.,  559. 
The  wharfage  may  be  charged  in  proportion  to  the  ton- 
nage of  the  vessel.     Id. 

A  quarantine  tax  or  fee,  for  examining  the  sanitary 
condition  of  a  ship,  does  not  contravene  this  provision. 
Morgan,  etc.,  Co.  v.  Louisiana,  118  U.  S.,  455,  467. 

The  Act  of  Congress  of  August  31  (10  Stat,  at  L., 
112),  declaring  the  bridge  across  the  Ohio  river  at 
Wheeling  a  lawful  structure,  and  requiring  vessels  to 
be  so  constructed  as  not  to  interfere  with  it,  as  then 
constituted,  is  not  in  conflict  with  the  "no  preference" 
clause  of  the  Constitution.  Pennsylvania  v.  Wheeling, 
etc..  Bridge  Co.,  18  How.,  421. 

This  limitation  operate-s  only  as  a  restriction  on  the 
powers  of  Congress,  and  in  no  respects  affects  the  States 
in  the  regulation  of  their  domestic  affairs.  The  Illi- 
nois Constitution  of  1870  contained  an  article  declar- 
ing warehouses  and  elevators  where  grain  is  stored  pub- 
lic, and  providing  for  their  regulation,  is  not  repugnant 
to  this  clause.  Munn  v.  Illinois,  94  U.  S.,  113 ;  Mor- 
gan V.  Louisiana,  118  U.  S.,  455,  467. 

MONEY  DBA  WIT  FROM  TREASURY. 

"No  money  shall  be  drawn  from  the  treasury,  but  in 
consequence  of  appropriations  made  by  law;  and  a  regular 
statement  and  account  of  the  receipts  and  expenditures  of 
all  public  money  shall  be  published  from  time  to  time.'* 


^\» 


144  CO]S^STITUTION  OF  UNITED  STATES.         [Art.  I, 

TITLES  OF  NOBILITY,  ETC.,  FORBIDDEN. 

"No  title  of  nobility  shall  be  granted  by  the  United 
States;  and  no  person  holding  any  office  of  profit  or  trust 
under  them  shall,  without  the  consent  of  the  Congress,  ac- 
cept of  any  present,  emolument,  office,  or  title,  of  any 
kind  whatever,  from  any  king,  prince,  or  foreign  State.'^ 

PEOHIBITIONS  ON  THE  STATES. 

Section  10.  *'No  State  shall  enter  into  any  treaty, 
alliance,  or  confederation;  grant  letters  of  marque  and 
reprisal;  coin  money;  emit  bills  of  credit;  make  anything 
but  gold  and  silver  coin  a  tender  in  payment  of  debts; 
pass  any  bill  of  attainder,  ex  post  facto  law,  or  law  impair- 
ing the  obligation  of  contracts,  or  grant  any  title  of 
nobility." 

1.  What  are  hills  of  credit. — Certificates  of  in- 
debtedness issued  by  the  State  of  Missouri,  in  sums  not 
exceeding  ten  dollars,  nor  less  than  fifty  cents,  receiv- 
able in  payment  of  all  State,  county,  and  town  dues, 
etc.,  the  faith  of  the  State  being  pledged  for  their  re- 
demption, are  "bills  of  credit,"  and  can  not  lawfully  be 
issued.  Craig  v.  Missouri,  4  Pet.,  410 ;  Byrne  v.  State 
of  Missouri,  8  Pet.,  40. 

2.  What  are  not  hills  of  credit. — The  Bank  of  the 
Commonwealth  of  Kentucky  was  a  corporation  char- 
tered by  the  State.     The  State  owned  all  the  stock  of 


Sec.   10.]  PROHIBITIONS  ON  STATES.  14:5 

the  bank,  to  which  the  holders  of  bills  could  resort  for 
payment.  There  was  no  promise  that  the  State  would 
pay.  The  bank  notes  of  this  bank  were  held  not  to  be 
bills  of  credit  within  the  Constitution.  Briscoe  v. 
Bank  of  Commonwealth  of  Kentucky,  11  Pet.,  257. 

A  like  bank  was  incorporated  in  Alabama,  with  capi- 
tal stock  paid  in,  liable  for,  and  subject  to  be  sued  for 
debts.  The  State  owned  all  the  stock  and  the  legisla- 
ture elected  directors.  Its  bills  were  received  in  pay- 
ment of  public  debts  and  the  State  pledged  its  faith  for- 
their  redemption.  Held,  not  "bills  of  credit."  Dar- 
rington  v.  State  Bank  of  Alabama,  13  How.,  12, 

In  1836,  the  legislature  chartered  a  banking  corpora- 
tion. The  State  was  the  sole  stockholder,  and  the  bills 
and  notes  of  the  bank  were  made  receivable  for  all  debts 
due  the  State.  Following  Briscoe  v.  Bank  of  Ken- 
tucky, 11  Pet.,  311,  these  notes  were  held  not  bills  of 
credit  issued  by  the  State.  Woodruff  v.  Trapnall,  10 
How.,  203. 

Coupons  attached  to  a  State  bond  and  receivable  by 
the  terms  of  the  contract  for  taxes  are  not  "bills  of 
credit"  within  the  meaning  of  the  Constitution.  Poin- 
dexter  v.  Greenhow,  114  U.  S.,  270 ;  Virginia  Coupon 
Cases,  (Poindexter  v.  Greenhow,  114  U.  S.,  270). 

A  warrant  drawn  by  State  authorities  in  payment  of 

an  appropriation  is  not  "a  bill  of  credit,"  in  violation 

of  the  Constitution.    Art.  I,  Sec.  10 ;  Houston  v.  Texas^ 

177  U.  S.,  66. 
10 


146  CONSTITUTIOl^  OF  UNITED  STATES.         [Art.  I, 

WHAT  ARE  EX  POST  FACTO  LAWS  ? 

(See  pages  135-139.)  A  law  changing  the  place  of 
trial  from  one  county  to  another,  in  the  same  district, 
from  that  where  the  offense  was  committed,  is  not  an 
ex  post  facto  law.     Gut  v.  The  State,  9  Wall.,  35. 

Although  the  prohibition  of  the  Constitution  to  pass 
ex  post  facto  laws  is  aimed  at  criminal  cases,  it  can  not 
be  evaded  by  giving  a  civil  form  to  that  which  is  in  sub- 
stance criminal.     Cummings  v.  Missouri,  4  Wall.,  277. 

But  a  State  law  which,  in  relation  to  a  particular  of- 
fense or  its  consequences,  alters  the  situation  of  the  de- 
fendant to  his  disadvantage  is  ex  post  facto,  Kring  v. 
Missouri,  107  U.  S.,  221.  Thus,  where  the  law  at 
time  of  the  offense  made  conviction  on  plea  of  guilty  to 
murder  in  the  second  degree,  a  bar  to  a  prosecution  for 
murder  in  the  first  degree,  a  change  in  the  law  to  re- 
move such  bar  is  ex  post  facto. 

An  act  which  is  not  an  offense  at  the  time  it  is  com- 
mitted can  not  become  such  by  any  subsequent  inde- 
pendent act  of  the  party  with  which  it  has  no  connec- 
tion. Acts  of  bankruptcy  or  to  dedfraud  creditors  can 
not  be  punished  under  a  statute  passed  after  the  act  was 
committed.     United  States  v.  Fox,  95  U.  S.,  570. 

An  act  approved  in  the  afternoon  raised  the  duty  on 
tobacco  and  provided  that  a  fine  should  be  imposed  for 
removing  it  from  the  warehouse,  without  the  stamp  to 


Sec.   10.]    IMPAIEING  COIS^TBACT  OBLIGATIONS.  147 

show  payment  of  the  tax.  As  to  tobacco  removed  in  the 
morning  of  the  same  day  the  act  was  ex  'post  facto. 
Burgess  v.  Salmon,  97  U.  S.,  381. 

Any  law  passed  after  the  commission  of  the  offense 
for  which  the  party  is  being  tried  is  an  ex  post  facto  law 
when  it  inflicts  a  greater  punishment  than  the  law  an- 
nexed to  the  crime  at  the  time  it  was  committed,  or 
which  alters  the  situation  of  the  accused  to  his  disad- 
vantage. Ee  Medley,  134  U.  S.,  160.  So,  a  State  law 
which  gave  power  to  the  warden  of  the  prison  to  e*xecute 
a  prisoner  at  any  day  and  hour  during  a  designated 
week,  was  held  void  as  to  crime  previously  committed. 
Id. 

IMPAIRING   CONTEACT    OBLIGATIOIsrS. 

Instances  in  which  state  laws  have  been  held  to  im- 
pair the  obligation  of  a  contract. — A  State,  unless  re- 
stricted by  its  Constitution,  may  contract  to  release  the 
taxing  power.  Jefferson  Branch  Bank  v.  Skelly,  1 
Black,  436 ;  Piqua  Branch  Bank  v.  Knoop,  16  How., 
369,  affirmed. 

The  Dartmouth  College  case. — The  charter  granted 
by  the  British  Crown  to  the  trustees  of  Dartmouth  Col- 
lege, in  ISTew  Hampshire,  in  the  year  1769,  is  a  contract 
within  the  meaning  of  that  clause  of  the  Constitution 
which  declares  that  "no  State  shall  make  any  law  im- 
pairing the  obligation  of  a  contract."  Dartmouth  Col- 
lege V.  Woodward,  4  Wheat.,  518.     The  legislature  in 


148  CONSTITUTION  OF  UNITED  STATES.  [Art.  I, 

this  case  attempted  to  alter  tlie  charter  so  as  to  obtain  a 
practical  control  of  the  institution,  which  the  charter 
gave  to  trustees,  having  a  perpetual  succession  and  right 
to  fill  all  vacancies  in  tl^e  board  of  trustees.  The  act  at- 
tempted to  place  the  control  under  twenty-one  trustees 
instead  of  the  twelve  provided  by  the  charter,  the 
trustees  to  be  appointed  by  the  governor  and  council. 
In  this  great  leading  case  it  was  held  that  such  legisla- 
tion impaired  the  contract  of  the  original  charter,  and 
the  act  was  held  void. 

In  1836  the  legislature  of  Arkansas  chartered  a  bank- 
ing corporation  of  which  the  State  was  to  be  ^ole  stock- 
holder, which  charter  provided  that  the  bills  and  notes 
of  such  bank  "should  be  received  in  payment  of  all 
debts  due  the  State."  The  repeal  of  this  provision  im- 
paired the  obligation  of  a  contract.  Woodruff  v.  Trap- 
nail,  10  How.,  190. 

Where  a  legislature  of  a  State  accepted  from  bank- 
ing corporations  a  "bonus"  as  consideration  for  the 
franchise  granted,  and  pledged  the  faith  of  the  State 
"not  to  impose  any  further  tax  or  burden  upon  them 
during  the  continuance  of  their  charters,"  held,  that 
a  tax  upon  the  stockholders,  by  reason  of  their  stock, 
was  a  violation  of  this  contract,  and  the  further  tax  was 
illegal.     Gordon  v.  Appeal  Tax  Court,  3  How.,  133. 

The  charter  of  a  bank  fixing  a  rate  of  taxation  as  in 
lieu  of  all  other  taxes,  is  a  contract  between  the  State 
and  the  bank,  and   is  impaired   by  the   imposition   of 


Sec.   10.]    IMPAIRING  COiq^TEACT  OBLIGATIONS.  149 

other  taxes.  Farrington  v.  Tennessee,  95  IT.  S.,  679 ; 
Piqua  Branch  Bk.  v.  Knoop,  16  How.,  369;  Dodge  v. 
Woolsej,  18  How.,  331;  Mech.  &  Traders'  Bk.  v, 
Thomas,  18  How.,  384;  Jefferson  Branch  Bk.  v. 
Shelly,  1  Black.,  436;  Franklin  Bk.  v.  Ohio,  1  Black., 
474;  JSTew  Jersey  v.  Yard,  95  U.  S.,  114. 

The  charter  of  the  Bank  of  Tennessee  provided 
"that  the  bills  or  notes  of  said  corporation,  originally 
made  payable,  or  which  shall  have  become  payable  on 
demand  in  gold  or  silver,  shall  be  receivable  at  the 
treasury  of  the  State  and  by  all  tax-collectors  and 
other  public  officers  for  taxes  or  other  money  due  the 
State."  This  guaranty  was  a  contract  and  attached  to 
every  note  issued  while  the  statute  was  in  force,  and  a 
subsequent  law  limiting  the  notes  that  should  be  thus 
secured  to  those  only  that  were  passing  at  par  did  not 
repeal  the  above  quoted  section.  Furman  v.  N'ichol, 
8  Wall.,  44. 

A  provision  in  a  charter  of  a  corporation,  by  which  a 
State  legislature  relinquishes  its  power  to  tax  the  cor- 
poration, constitutes  a  contract  which  the  State  can  not 
subsequently  impair.    Humphrey  v.  Pegues,  16  Wall. 
244;  Home  of  the  Friendless  v.  House,  8  Wall.,  430 
Wilmington,  etc.,  K.  Co.  v.  Keid,  13  Wall.,  264,  269 
Farrington  v.  Tennessee,  95  U.  S.,  679;  St.  Anna's 
Asylum  v.  JSTew  Orleans,  105  U.  S.,  362. 

Reserved  right  to  alter  or  amend. — But  where,  when 
the  charter  is  granted,  the   Constitution   or  a  general 


150  COXSTITUTIOI^r  OF  UNITED  STATES.  [Art.  I, 

law,  provides  that  charters  may  be  altered,  amended  or 
repealed,  the  corporation  may  be  subjected  to  taxation 
from  which  it  had  been  exempted.  Charleston  v. 
Branch,  15  Wall.,  470;  Tomlinson  v.  Jessnp,  15  Wall., 
454;  Un.  Pass.  E.  Co.  v.  Phila.,  101  U.  S.,  528;  Miller 
V.  State,  15  Wall.,  4Y8 ;  Denny  v.  Bennett,  128  U.  S., 
495;  Eailway  Co.  v.  Philadelphia,  101  U.  S.,  539; 
Spring  Valley  Water  Co.  v.  Schottler,  110  TJ.  S.,  352 ; 
Citizens'  Bank  v.  Owensboro,  173  TJ.  S.,  651 ;  Miller  v. 
State,  15  Wall.,  493;  Sinking-Fund  Cases,  99  U.  S., 
748.  A  statute  permitting  each  stockholder  of  a  cor- 
poration to  cumulate  his  votes  upon  any  one  or  more  can- 
didates for  directors  (Mich.  Stats.,  1885,  Ch.  112)  is 
within  the  reserved  power  to  alter,  amend  or  repeal,  re- 
served by  the  State  Constitution  to  the  legislature  and 
does  not  impair  the  obligation  of  the  contract  between 
the  State  and  the  corporation  by  the  original  charter. 

Loaker  v.  Maynard,  179  U.  S., .     (Decided  Oct. 

16, 1900.) 

Where  a  charter  exempts  the  capital  stock  from  tax- 
ation, the  shares  are  exempt.  Tennessee  v.  With- 
worth,  117  TJ.  S.,  129.  But  this  does  not  exempt  other 
property  than  the  stock.  Trask  v.  Maguire,  18  Wall., 
391;  Memphis,  etc.,  K.  Co.  v.  Gaines,  97  TJ.  S.,  697; 
St.  Louis,  Iron  Mt,  etc.,  Co.  v.  Loftin,  98  U.  S.,  659. 

Note. — The  principle  of  the  Dartmouth  College  case  that  a 
charter  is  a  contract  has  been  many  times  affirmed  by  the  Su- 
preme Court.  "The  doctrines  of  this  case  are  so  imbedded  in 
the  jurisprudence  of  the  United  States  as  to  make  them  to  all 


Sec.   10.]    IMPAIRING  CONTRACT  OBLIGATIONS.  151 

intents  and  purposes  a  part  of  the  Constitution  itself."  Stone 
V.  Mississippi,  101  U.  S.,  816.  It  lias  been  applied  in  the  fol- 
lowing classes  of  cases: 

1.  Charters  of  private  corporations  are  contracts,  which  are 
protected  against  laws  impairing  them.    Binghamton  Bridge, 
3  Wall.,  51;  Davis  v.  Gray,  16  Wall.,  203;  Humphrey  v.  Pegues, 
lb  Wall.,  249. 

2.  Where  a  state  banking  law  provided  that  6  per  cent. 
of  the  dividends  declared  should  be  paid  to  the  State  in  lieu 
of  all  other  taxes.  Piqua  Branch  Bank  v.  Knoop,  16  How., 
382,  389;  followed  in  Farrington  v.  Tennessee,  95  U.  S.,  690; 
Dodge  V.  Woolsey,  18  How.,  331;  Mechanics',  etc..  Bank  v. 
Bebolt,  18  How.,  380;  Jefferson  Branch  Bank  v.  Skelly,  1 
Black.,   436;    Franklin  Branch  Bank  v.   Ohio,   1  Black.,   474. 

Or,  where  a  State  makes  a  valid  contract  with  a  private  cor- 
poration that  it  or  its  property  within  the  State  shall  be  sub- 
ject to  a  limited,  or  exempted  from,  taxation,  subsequent  legis- 
lation can  no(t  impair  such  contract.  New  Jersey  v.  Wilson, 
7  Cranch,  164;  Gordon  v.  Appeal  Tax  Court,  3  How.,  133; 
Achison  v.  Huddleson,  12  How.,  293;  McGee  v.  Mathis,  4 
Wall.,  143;  Van  Hoffman  v.  Quincy,  4  Wall.,  535;  Wilmington 
R.  R.  Co.  V.  Reid,  13  Wall.,  264;  Tomlinson  v.  Branch,  15  Wall., 
460;  Humphrey  v   Pegues,  16  Wall.,  244. 

A  charter  creating  a  benevolent  private  corporation  which 
enables  and  encourages  persons  to  invest  in  such  corporation, 
for  such  purposes,  and  declares  that  its  property  shall  be 
exempt  from  taxation,  constitutes  a  contract,  and  a  subsequent 
law  taxing  the  property  thus  exempted  by  the  charter  impairs 
the  obligation  of  the  contract,  and  is  void.  Home  of  the 
Friendless  v.  Rouse,  8  Wall.,  430;  Washington  University  v. 
Rouse,  8  Wall.,  439;  Dodge  v.  Woolsey,  18  How.,  378;  Farring- 
ton V.  Tennessee,  95  U.  S.,  683.  But  the  contract  of  exemption 
must  be  so  clear,  explicit  and  determinate  that  there  can  be 
no  doubt  as  to  its  terms  or  the  consideration  that  makes  it 
binding.  8  Wall.,  439.  When  exemption  is  granted  subse- 
quently to  the  original  charter,  it  must  to  be  a  contract,  be 
supported  by  some  valuable  consideration,  otherwise  it  is  a. 
mere  gratuity.    Grand  Lodge  v.  New  Orleans,  166  U.  S.,  146. 


162  CONSTITUTION  OF  UNITED  STATES.  [Art.  I, 

3.  But  where  an  exemption  from  taxation  is  conferred  on 
a  corporation  already  in  existence  without  consideration, 
such  exemption  can  be  repealed  without  impairing  any  con- 
tract obligation.  Rector  v.  Philadelphia,  24  How.,  300;  Tucker 
V.  Furguson,  22  Wall.,  574;  West  Wisconsin  R.  R.  Co.  v. 
Supervisors,  93  U.  S.,  598. 

4.  And  where  the  State  legislature  has  no  power  to  exempt 
property  from  taxation,  there  is  no  contract  to  be  impaired. 
R.  R.  Co.  V.  Palmes,  109  U.  S.,  257. 

5.  Where  there  is  an  implied  reservation  in  a  charter  that 
it  might  be  altered  at  the  pleasure  of  the  legislature,  the 
charter  may  be  altered  without  violating  this  constitutional 
provision.     Pennsylvania  College  Cases,  13  Wall.,  190. 

An  act  gave  a  charter  to  a  corporation  to  build  a  toll  bridge 
and  take  tolls  fixed  by  the  act,  and  further  enacted  that  it 
should  not  be  lawful  for  any  other  person  or  persons  to  build 
a  bridge  within  two  miles,  either  above  or  below.  This  meant 
that  the  legislature  would  not  authorize  such  rival  bridge  to 
be  built  within  the  prescribed  distance,  and  a  subsequent  law 
attempting  such  authorization  impaired  the  contract.  The 
Binghampton  Bridge,  3  Wall.,  51.  This  case  differs  from  the 
Charles  River  Bridge  v.  The  Warren  Bridge,  11  Peters,  420,  in 
this,  that  in  the  last  cited  case  there  was  no  express  nor  im- 
plied agreement  that  the  State  would  not  authorize  another 
bridge  to  be  built  to  the  injury  of  the  first  one. 

Another  limitation  on  the  doctrine  of  the  Dartmouth  College 
case  is  that  where  a  charter  may  be  a  contract,  yet  while 
unexecuted  on  the  part  of  the  corporation,  it  may  be  modified. 
Thus  a  railroad  charter  expressly  prohibited  the  consolidation 
of  competing  lines.  Before  the  railroad  had  been  built,  con- 
solidation was  permitted  by  a  subsequent  act,  which  was  held 
not  to  impair  a  contract.  Pearsall  v.  Great  Northern  Ry.  Co., 
161  U.  S.,  646. 

The  doctrine  is  further  qualified  in  this,  that  the  State  may 
exercise  eminent  domain,  and  thus  greatly  affect  the  rights 
granted  by  a  charter.  West  Riv.  Bridge  Co.  v.  Dix,  6  How., 
507;   East  Hartford  v.  Bridge  Co.,  10  How.,  536;   Greenwood 


Sec.   10.]    IMPAIRING  CONTRACT  OBLIGATIONS.  153 

V.  Freight  Co.,  105  U.  S.,  22;  Long  Island,  etc.,  Co.  v.  Brook- 
lyn, 166  U.  S.,  691. 

Such  charters  will  be  construed  strictly  against  the  corpora- 
tion. Charles  River  Bridge  Co.  v.  Warren  Bridge  Co.,  11  Pet, 
582,  618,  645. 

Where  a  charter  grants  the  power  to  charge  reasonable 
tolls,  the  legislature  may  by  later  legislation  regulate  the  tolls 
or  rates.  Munn  v.  Illinois,  94  U.  S.,  113;  Winona  R.  R.  Co. 
V.  Blake,  94  U.  S.,  180;  Stone  v.  Farmers'  Loan  and  Trust  Co., 
116  U.  S.,  330;  Georgia,  etc.,  Co.  v.  Smith,  128  U.  S..  174. 

No  legislature  can  bargain  away  the  public  health  or  the 
public  morals.  The  people  themselves  can  not  do  it,  much  less 
their  servants.  The  police  power  of  the  State  which  rests 
largely  in  legislative  discretion  can  not  be  parted  with.  Stone 
V.  Mississippi,  101  U.  S.,  819.  Thus,  a  fertilizing  company  was 
granted  a  charter,  and  allowed  to  build  works  at  a  certain 
point,  and  was  afterwards  crippled  by  sanitary  legislation. 
Fertilizing  Co.  v.  Hyde  Park,  97  U.  S.,  659. 

The  grant  of  power  of  taxation  to  a  municipal  cor- 
poration, is  not  a  contract;  but  may  be  revoked  or 
changed  by  the  legislature.  Williamson  v.  ISTew  Jersey, 
130  U.  S.,  189 ;  East  Hartford  Bridge  Co.,  10  How., 
536;  Aspinwall  v.  Comm'rs,  22  How.,  377;  JN'ew  Or- 
leans V.  ISTew  Orleans  Water  Co.,  142  U.  S.,  89.  These 
authorities  all  refer  back  to  a  dictum  in  the  Dartmouth 

College  Case,  4  Wheat.,  694. 

Contracts  made  by  States  can  not  be  impaired  by  sub- 
sequent State  laws.     New  Jersey  v.  Wilson,  7  Cranch., 

134;  Green  v.  Biddle,  8  Wheat.,  1;  Providence  Bank 

V.  Billings,  4  Pet,  514;  Davis  v.  Gray,  16  Wall.,  203; 

United  States  v.  ISTew  Orleans,  103  U.  S.,  358. 

A  State  having  issued  bonds,  offered  to  issue  new 

bonds  in  their  place,  whenever  the  holders  chose  to  ac- 


154  CONSTITUTION  OF  UNITED  STATES.  [Art.  ly 

cept  the  terms  of  the  excliange.  This  offer  created  na 
contract,  and  the  State  could  withdraw  it.  Durkee  v. 
Board  of  Liquidation,  103  U.  S.,  64:6, 

If  a  State  legislature  make  a  grant  in  fee,  a  subse- 
quent legislature  can  not  take  the  title  away  from  a 
bona  fide  purchaser  for  a  valuable  consideration  from 
the  first  grantee.  The  grant  is  an  executed  contract 
and  its  obligations  can  not  be  impaired  by  a  law  of  the 
State.  Contracts  by  a  State  can  not  be  impaired, 
Fletcher  v.  Peck,  6  Cranch,  87. 

A  legislative  act  passed  in  consideration  of  a  release 
of  title  by  the  Indians,  declaring  that  certain  lands 
which  should  be  purchased  by  the  Indians  should  not 
thereafter  be  taxable,  held  to  be  a  contract  which  a  sub- 
sequent legislature  could  not  repeal,  l^ew  Jersey  v, 
Wilson,  7  Cranch,  164. 

A  mortgage  contained  a  power  to  the  creditor  to  sell 
on  breach  of  condition,  and  thereby  pay  the  debt,  which 
was  a  valid  power  when  given.  A  subsequent  law  at- 
tempted to  give  the  mortgagor  twelve  months  in  which 
to  redeem  the  property  from  the  purchasers  at  such  sale, 
and  prohibited  it  from  being  made  for  less  than  two- 
thirds  of  the  value.  Held,  that  this  so  altered  the  rem- 
edy as  to  impair  the  obligation  of  the  contract.  Bron- 
son  V.  Kinzie,  1  How.,  311. 

A  State  law  which  prohibited  property  from  being 
sold  on  execution  at  less  than  two-thirds  its  valuation, 
as  made  by  appraisers  pursuant  to  directions  in  the  law,, 


Sec.    10.]     IMPAIEIIN^G  CONTRACT  OBLIGATIONS.  155- 

impairs  the  obligation  of  a  contract.  McCracken  v. 
Hajward,  2  How.,  608. 

But  where  the  debt  was  made  by  the  terms  of  the 
bonds  of  the  State  payable  "in  specie  or  its  equivalent,"" 
this  decision  was  not  applicable.  Paup  v.  Drew,  lO- 
How.,  218. 

Where  the  charter  of  a  corporation  sets  apart  a  fund 
out  of  which  its  debts  are  to  be  paid,  this  amounts  to  a 
contract  with  creditors  that  the  fund  shall  not  be  with- 
drawn ;  and  a  law,  which  deprives  creditors  of  the  cor- 
poration of  all  legal  remedy,  impairs  the  obligation  of  a 
contract.     Curran  v.  Arkansas,  15  How.,  304. 

Congress  provided  (2  Stat,  at  L.,  279)  that  a  town- 
ship of  land  in  Indiana  be  located  for  the  use  of  a  sem- 
inary of  learning.  The  legislature  incorporated  the 
trustees  of  the  Yincennes  University,  and  granted  to 
them  powers  to  hold  this  land  for  the  use  aforesaid. 
Held,  that  the  corporation  took  this  land,  and  the  title 
•could  not  be  divested  and  conferred  upon  another  body 
politic.  Trustees  of  Yincennes  University  v.  Indiana, 
14  How.,  268. 

A  State  statute  repealing  a  former  statute  which 
made  the  stock  of  the  stockholders  in  a  chartered  com- 
pany liable  to  the  corporation's  debts  is,  as  respects 
creditors  whose  claims  existed  at  the  time  of  the  repeal, 
a  law  impairing  the  contract  obligation.  This  is  so 
even  though  the  liability  of  the  holder  is  in  some  respects 
conditional  only;  and  though  the  stockholder  was  not 
made,  by  the  statute  repealed,  liable  in  any  way  in  his 


156  COlSiSTITUTlON  OF  UNITED  STATES.  [Art.  I, 

person  or  property  generally  for  the  debts  of  the  cor- 
poration.    Hawthorne  v.  Calef,  2  Wall.,  10. 

A  State  (New  York)  gave  a  charter  to  build  a  toll 
bridge  and  take  toll  as  fixed  by  the  act;  and  that  it 
should  not  be  lawful  for  any  person  or  persons  to  erect 
any  bridge  within  two  miles  either  above  or  below  the 
bridge  authorized.  This  was  a  contract  not  to  be  im- 
paired, though  the  charter  was  without  limit  as  to 
period  of  duration.  Chefnango,  etc.,  Co.  v.  Binghamton 
Bridge  Co.,  3  Wall.,  51. 

Where  a  statute  has  authorized  a  municipal  corpora- 
tion to  issue  bonds  and  to  exercise  the  power  of  local 
taxation  to  pay  them,  and  persons  have  bought  and  paid 
value  for  bonds  issued  accordingly,  the  power  of  taxa- 
tion thus  given  is  a  contract  within  the  meaning  of  the 
Constitution,  and  can  not  be  withdrawn  until  the  con- 
tract is  satisfied.  A  subsequent  statute  repealing  or  re- 
stricting the  power  of  taxation  so  previously  given,  is, 
as  to  bonds  theretofore  issued,  a  nullity.  The  corpora- 
tion must  levy  taxes  as  though  the  second  statute  had 
not  been  passed,  and  will  be  compelled  to  do  so  by  man- 
damus.    Van  Hoffman  v.  City  of  Quincy,  4  Wall.,  535. 

A  statute  which  for  the  declared  purpose  of  aiding  a 
charitable  institution  exempted  its  property  from  taxa- 
tion, and  enacted  that  an  existing  statute  provision  that 
all  charters  of  incorporation  should  be  subject  to  altera- 
tion, repeal  or  suspension  should  not  apply  to  it,  is  a 
contract ;  and  the  State  can  not  tax  the  property  so  long 
as  the  corporation  owns  it  and  applies  it  to  the  uses  for 


Sec.   10.]    IMPAIKING  CONTRACT  OBLIGATIONS.  167 

which  the  charter  was  granted ;  and  a  later  law  subject- 
ing such  property  to  taxation,  violates  the  Constitution. 
Home  of  the  Friendless  v.  Eouse,  8  Wall.,  430.  The 
same  ruling  as  to  an  institution  of  learning.  Washing-* 
ton  University  v.  Rouse,  8  Wall.,  439.  A  State  may 
make  a  valid  contract  that  a  corporation  or  its  property 
shall  be  exempt  from  taxation  or  subject  to  a  limited 
or  specific  taxation.  Erie  Ry.  Co.  v.  Pennsylvania,  21 
Wall.,  498,  and  cases  cited. 

A  statute  limiting  the  tax  which  a  municipal  body 
can  levy  on  the  assessed  value  in  any  one  year,  does  not 
apply  where  a  judgment  has  been  recovered  against  the 
municipality.  It  is  the  duty  of  the  municipality  to 
levy  a  tax  to  pay  ofi  the  judgment ;  and  this  will  in 
proper  case  be  compelled  by  mandamus.  Butz  v.  City 
of  Muscatine,  8  Wall.,  575. 

Bonds  issued  by  railroad  company  are  property  in 
hands  of  holders,  and  when  held  by  non-residents  of  the 
State,  where  the  company  is  incorporated,  are  property 
beyond  the  jurisdiction  of  the  State.  A  law  taxing 
such  bonds  and  requiring  the  treasurer  of  the  corpora- 
tion to  deduct  it  from  interest  due  and  pay  it  into  the 
State  treasury,  impairs  the  contract.  State  Tax  on  For- 
eign-held Bonds,  15  Wall.,  300. 

A  judgment-debtor  whose  lien  has  attached  to  certain 
lands  can  not  be  divested  thereof  by  an  extension  of  the 
exemption  laws  to  include  lands  not  exempt  when  thb 
lien  attached.     Gunn  v.  Barry,  15  Wall.,  610. 

A  charter  was  amended  to  exempt  railroad  property 


158  CON^STITUTION  OF  UNITED  STATES.  [Art.  I, 

from  taxation  and  give  the  franchise  anew.  Held,  that 
this  was  a  case  where  the  exemption  had  the  force  of  a 
contract  and  that  the  exemption  could  not  be  repealed. 
Humphrey  v.  Pegues,  15  Wall.,  244. 

A  law  of  Georgia  provided  that  in  all  suits  pending 
on  any  promissory  note  the  plaintiff  could  not  recover 
unless  he  proved  that  he  had  paid  taxes  on  the  note  for 
each  year  since  the  making  of  the  same,  making  such 
payment  of  taxes  a  condition  precedent  of  recovering. 
Held,  that  this  impaired  the  obligation  of  a  contract. 
Walker  v.  Whitehead,  16  Wall.,  314. 

A  State  held  all  the  stock  of  a  bank.  An  act  of  the 
legislature  required  the  managers  to  hold  the  assets  in 
trust  for  certain  creditors.  The  creditors  assented. 
Held,  that  this  created  a  trust  in  favor  of  these  cred- 
itors, to  carry  out  the  trust  for  their  benefit.  If  such 
an  act  has  the  effect  to  appropriate  the  assets  of  the  bank 
to  the  debts  to  the  State,  leaving  bill  holders  and  other 
creditors  in  the  lurch,  it  is  repugnant  to  the  Constitu- 
tion, as  impairing  contract  obligations.  Barings  v. 
Dabney,  19  Wall.,  1. 

When  a  contract  is  made  with  a  municipal  corpora- 
tion upon  the  faith  that  taxes  will  be  levied,  legislation 
repealing  or  modifying  the  taxing  power  so  as  to  de- 
prive the  holder  of  all  adequate  and  efficacious  remedy, 
impairs  the  contract,  and  the  court  will  compel  specific 
tax  levies  by  mandamus.  Louisiana  ex  rel,  l^elson  v. 
St.  Martin's  Parish,  111  U.  S.,  Y16. 

Contracts  made  in  the  insurgent  States  during  the 


Sec.    10.]     IMPAIKIN-G  COl^TRACT   OBLIGATIONS.  159 

civil  war,  between  residents  of  those  States,  with  refer- 
ence to  Confederate  notes  as  a.  standard  of  value,  not  in 
aid  of  rebellion,  may  be  enforced  in  the  IsTational  courts 
and  the  value  of  the  contract  determined  bj  the  value 
of  the  Confederate  money  in  lawful  money  at  the  time 
of  the  making  of  the  contract.  Effinger  v.  Kenney, 
115  U.  S.,  566. 

A  State  law  seeking  to  evade  this  rule  and  allow  parol 
proof  of  a  different  parol  agreemeoit  or  understanding, 
impairs  the  contract.     Id. 

A  legislative  grant  of  an  exclusive  right  or  franchise 
to  furnish  gas  to  a  municipality  and  its  inhabitants, 
through  pipes  and  mains  laid  in  the  public  streets,  and 
upon  the  condition  of  the  performance  of  the  service  of 
the  grantee,  is  the  grant  of  a  franchise  vested  in  the 
State,  and,  after  performance  by  the  grantee,  is  a  con- 
tract protected  by  the  Constitution,  but  the  State  legis- 
lature does  not  part  with  the  police  power  or  its  duty  of 
protecting  the  public  health,  safety  and  morals,  as  these 
may  be  affected  by  the  exercise  of  the  franchise  by  such 
grantee.  'New  Orleans  Gas  Co.  v.  Louisiana  Light 
Company,  115  U.  S.,  650. 

A  State  statute  which  authorizes  the  redemption  of 
property  sold  on  mortgage  foreclosure,  where  no  right 
of  redemption  previously  existed,  can  not  apply  to  a 
sale  before  its  passage.  Barnitz  v.  Beverly,  163  U.  S., 
118. 

A  charter  exempted  all  the  property  of  a  railroad 


160  CONSTITUTION  OF  UNITED  STATES.         [Art.  I, 

from  taxation.  This  included  not  only  franchise,  but 
real  estate  and  rolling  stock.  A  subsequent  law  taxing 
the  franchise  held  void  as  impairing  the  contract  of  the 
first.     Wilmington  K.  K.  v.  Keid,  13  Wall.,  264. 

In  determining  whether  a  contract  was  protected 
from  impairment  by  the  United  States  Constitution 
the  Supreme  Court  forms  an  independent  judgment  in 
each  case,  unaffected  by  the  State  court  decisions  in 
other  like  cases.  Citizens'  Sav.  Bank  v.  Owefusboro, 
173  U.  S.,  636.  The  Supreme  Court  is  not  bound  by 
the  decision  of  the  State  court.  McCullough  v.  Vir- 
ginia, 172  U.  S.,  102.  ISTor,  is  the  Federal  court 
obliged  to  change  when  the  State  court  changes. 
Gelpcke  v.  Dubuque,  1  Wall.,  175. 

''The  Virginia  Coupon  Cases/' — An  issue  of  bonds 
with  coupons  attached,  under  an  act  of  the  State  of  Vir- 
ginia, provided  that  the  coupons  should  be  receivable 
"at  and  after  maturity  for  all  taxes,  debts  and  demands 
due  the  State."  A  later  act,  which  forbade  such  re- 
ceipt of  these  coupons,  was  held  void  as  impairing  the 
obligation  of  the  contract.  Virginia  Coupon  Cases 
(Poinde-xter  v.  Greenhow,  114  TJ.  S.,  270). 

An  assessment  of  a  license  to  be  paid  as  condition 
precedent  to  exercising  a  business  or  trade  is  a  tax,  due 
or  demand  "within  the  meaning  of  the  act  of  Virginia 
(March  30,  1871),  making  coupons  on  the  bonds  re- 
ceivable for  ^taxes,  debts,  dues  and  demands  due  the 
State.'  "     Eoyall  v.  Virginia,  116  U.  S.,  572. 


Sec.   10.]    IMPAIRING  CONTRACT  OBLIGATIONS.  161 

The  Supreme  Court  in  1881  sustained  tlie  act  of  Vir- 
ginia of  1871,  in  whicli  tlie  coupons  on  the  bonds  of  the 
State,  issued  for  the  refunding  of  her  then  existing 
bonded  debt,  were  made  receivable  for  taxes.  By  subse- 
quent legislation  the  State  sought  to  evade  or  impair  this 
provision.  The  following  are  the  cases  in  the  Supreme 
Court  in  which  questions  affecting  this  coupon  question 
have  been  considered.  The  original  act  passed  March 
30,  1871,  was  for  refunding  the  public  debt.  It  pro- 
vided for  the  issue  of  bonds  with  coupons  to  two-thirds 
the  amount  of  the  former  bonds,  and  making  the  inter- 
est coupons  payable  semi-annually  and  "receivable  at 
and  after  maturity  for  all  taxes,  debts,  dues  and  de- 
mands due  the  State,  which  shall  be  expressed  on  the 
face  thereof."  This  statute  proved  unsatisfactory  to 
the  people  of  the  State  and  the  following  acts  were 
passed  to  embarrass  or  prevent  effect  being  given  to  the 
provision  making  the  coupons  receivable  for  taxes :  The 
act  of  March  7,  1872,  making  it  unlawful  for  officers 
charged  with  the  collection  of  taxes  or  other  demands 
due  the  State  at  that  time  or  thereafter  to  receive  any- 
thing in  payment  but  gold  and  silver  coin.  United 
States  treasury  notes,  or  the  notes  of  National  banks. 

The  Act  of  March  25, 1873,  imposed  a  tax  of  50  cents 

on  each  $100  of  the  market  value  of  the  bonds,  and 

directing  that  such  tax  be  deducted  from  the  coupons 

tendered  in  payment  of  taxes. 

The  Act  of  January   14,  1882,   compelled  the  tax- 
11 


162  CONSTITUTION  OF  UNITED  STATES.  [Art.  I, 

payer  to  pay  his  taxes  in  money  when  he  tendered  his 
bonds,  and  then  he  might  bring  a  suit  to  establish  the 
genuineness  of  the  coupons.  If  he  prevailed,  he  was  to 
have  his  money  refunded,  and  the  coupons  were  to  be 
received. 

The  Act  of  January  26,  1882,  further  provided  that 
tax-collectors  should  receive  only  "gold,  silver.  United 
States  notes,  l^ational  bank  currency  and  nothing  else." 
The  same  act  also  declared  that  there  should  be  no  other 
remedy  for  the  tax-payer,  except  such  as  provided  in 
that  act;  and  that  no  writ,  injunction,  supersedeas, 
mandamus,  prohibition  or  other  process  should  issue  to 
hinder  or  delay  the  collection  of  revenue,  etc. 

The  Act  of  Feb.  14,  1882,  provided  "that  no  writ  of 
mandamus,  prohibition,  or  any  other  summary  process 
whatever  shall  issue  in  any  case  of  the  collection  of  rev- 
enue, or  to  compel  the  collecting  officers  to  receive  any- 
thing in  payment  of  taxes  than  as  provided  for  by  acts 
above  mentioned,  in  which  the  applicant  for  the  process 
has  any  other  remedy  adequate  for  the  protection  of  his 
individual  right,  claim  and  demand,  if  just. 

The  Act  of  March  15,  1884,  required  that  all  school 
taxes  should  be  paid  "only  in  lawful  money  of  the 
United  States." 

The  Act  of  Jan.,  1886,  provided  that  in  a  suit  in  re- 
spect to  coupons  tendered  in  payment  of  taxes,  no  ex- 
pert testimony  should  be  received,  and  that  the  bonds 
from  which  the  coupons  were  cut  should  be  produced, 


Sec.   10.]    IMPAIRING  CONTRACT  OBLIGATIONS.  163 

if  demanded,  as  a  condition  precedent  to  the  right  of  re- 
covery. 

The  revision  of  the  Code  of  Virginia  of  May  16, 
1887,  made  it  unlawful  for  officers  charged  with  col- 
lection of  taxes,  debts  or  other  demands  of  the  State  to 
receive  in  payment  thereof  anything  but  gold,  silver  or 
United  States  or  ISTational  bank  notes. 

On  these  acts,  the  questions  arising  out  of  these  bonds 
were  before  the  United  States  Supreme  Court  in  va- 
rious phases  as  follows : 

1.  It  was  held  that  in  the  "Funding  Act,"  under 
which  the  bonds  were  issued,  the  provision  that  the  cou- 
pons should  be  receivable  for  taxes  and  their  acceptance 
and  surrender  of  the  old  bonds  consummated  a  contract 
between  the  State  and  the  holder  of  the  bonds  and  the 
holder  of  the  coupons,  from  which  without  their  con- 
sent, the  State  could  not  be  released.  Hartman  v. 
Greenhow,  102  U.  S.,  672. 

2.  The  subsequent  enactment  of  the  statute  of  March 
25,  1873,  taxing  the  bond  and  deducting  the  taxes  from 
the  coupons,  impaired  this  contract  and  the  owner  was 
entitled  to  mandamus  to  compel  the  proper  officer  to  re- 
ceive the  coupons  in  full  payment  of  the  taxes.     Id. 

3.  That  such  mandamus  proceedings  were  reviewable 
in  the  Supreme  Court  of  the  United  States,  the  question 
being  on  the  impairment  by  State  law  of  this  contract. 
Id. 

4.  After  the  Act  of  Jan.   4,  1882,  which  imposed 


164  CONSTITUTION  OF  UNITED  STATES.         [Art.  I, 

•upon  the  officer,  when  mandamus  was  prayed  against 
him-,  the  duty  to  answer  that  he  was  ready  to  receive  the 
coupons  as  soon  as  it  should  be  ascertained  that  they 
were  genuine,  and  requiring  the  coupon  holder  to  first 
pay  his  taxes  in  money,  it  was  held,  that  Sec.  4  of  such 
act  gave  the  coupon  holder  an  adequate  remedy,  and 
that  the  obligation  of  his  contract  was  not  thereby  im- 
paired. Antoni  V.  Greenhow,  107  IT.  S.,  769.  Section 
4  of  that  act  gave  the  court  power  to  issue  mandamus. 
Id.  Several  judges  dissented.  This  case  was  followed 
in  Moore  v.  Greenhow,  114  U.  S.,  338. 

5.  It  was  later  held  by  the  Supreme  Court  that  any 
act  of  the  State  which  forbids  the  receipt  of  these  cou- 
pons for  taxes  violates  the  contract  and  is  void;  that 
the  faculty  of  being  receivable  for  taxes  was  the  essence 
of  the  contract  and  constituted  a  self -executing  remedy 
in  the  hands  of  the  coupon  holders ;  that  tender  of  the 
coupons  for  taxes  was  equivalent  to  a  tender  in  money ; 
that  the  coupons  were  not  "bills  of  credit ;"  that  the  act 
of  Jan.  26,  1882,  requiring  tax  collectors,  etc.,  to  re- 
ceive only  gold,  silver,  or  United  States  or  !N'ational 
bank  notes  was  void,  as  impairing  the  obligation  of  a 
contract.     Poindexter  v.  Greenhow,  114  U.  S.,  270. 

6.  The  suit  by  the  holder  of  coupons  authorized  by  the 
Act  of  January  26,  1882,  against  a  tax  collector  upon 
his  refusing  to  accept  a  tender  of  coupons,  to  recover 
back  the  amount  paid  under  the  protest,  is  no  remedy 
at  all  for  the  breach  of  the  contract,  which  required  him 


Sec.   10.]    IMPAIEIISrG  CONTRACT  OBLIGATIONS.  165 

to  receive  the  coupons  in  payment;  that  the  coupon 
holder  has  a  right  to  insist  that  he  will  not  pay  in 
money ;  and  that  his  tender  of  the  coupons  is  equivalent 
to  payment;  and  he  may  regard  the  person  who  seizes 
his  property  for  taxes  after  such  teoider  as  a  trespasser. 
Id. 

7.  That  the  act  amendatory  of  said  Act  of  March  13, 
1884,  is  also  void.  This  last  act,  as  stated  above,  com- 
pelled the  coupon  holder  to  pay  the  taxes,  then  bring 
suit  if  he  chose  to  establish  the  genuineness  of  his  bonds 
and  to  recover  his  money.  It  also  forbade  any  suit  of 
trespass  or  trespass  on  the  case  against  an  officer  for 
levying  on  property  in  cases  where  coupons  had  been 
tendered  and  not  received.  Id.  Four  justices  dissent. 
Marye  v.  Parsons,  114  U.  S.,  325. 

8.  The  State  of  Virginia  requires  attorneys  to  pay  a 
license  fee  to  the  Commissioner  of  Kevenue  as  a  condi- 
tion precedent  to  practice  their  profession.  One  who 
tendered  coupons  issued  under  the  Funding  Act  of 
18 Yl  is  entitled  to  practice,  and  any  law  of  the  State 
subjecting  him  to  criminal  proceedings  for  so  practicing 
after  such  tender,  is  void.  Roy  all  v.  Virginia,  116 
U.  S.,  572. 

9.  And  after  lawful  tender  of  the  coupons  for  such 
"separate  revenue  license,"  the  person  otherwise  duly 
authorized  and  licensed  to  practice,  may  compel  by 
mandamus  the  officer  to  receive  the  coupons  and  deliver 


166  CONSTITUTION  OF  UNITED  STATES.         [Art.  I, 

them  to  the  proper  official  for  identification.     Sands  v. 
Edmunds,  116  U.  S.,  685. 

10.  Where  an  attorney  was  informed  against  for 
practicing  as  a  lawyer  without  having  paid  a  revenue 
license,  he  pleaded  payment  partly  in  cash  and  partly 
in  coupons  cut  from  a  bond  under  the  provisions  of  the 
Funding  Act  of  1871.  The  commonwealth  demurred 
to  the  plea.  Held,  that  the  demurrer  admitted  the  facts 
as  to  bond  and  good  tender,  and  showed  that  the  case 
came  under  the  ruling  in  Roy  all  v.  Virginia,  116  U.  S., 
572.     Eoyall  v.  Virginia,  121  U.  S.,  102. 

11.  The  proceeding  under  these  acts  for  the  identifi- 
cation and  verification  of  these  coupons  tendered  in  pay- 
ment of  debts  is  not  a  suit  of  a  civil  nature  so  as  to  be 
removable  into  the  Federal  courts.  Stewart  v.  Vir- 
ginia, 117  U.  S.,  612. 

12.  A  suit  in  equity  was  brought  in  the  Circuit 
Court  of  the  United  States  against  officers  of  the  State 
of  Virginia,  as  nominal  defendants  having  no  interest 
in  the  subject-matter  and  defending  only  as  represent- 
ing the  State,  the  relief  prayed  being  that  the  defend- 
ants do  certain  acts  which,  when  done,  would  constitute 
the  performance  of  a  contract  of  the  State.  The  suit  is 
against  the  State  within  the  11th  Amendment  and,  that 
as  such,  it  can  not  be  brought  in  the  Federal  courts ;  and 
for  violation  of  the  injunction  granted  in  it,  the  party 
arrested  for  contempt  of  court  will  be   released  on 


Sec.   10.]    IMPAIRING  CONTRACT  OBLIGATIONS.  167 

Jiaheas  corpus  by  the   Supreme   Court.     In  re  Ayres, 
123  U.  S.,  443. 

13.  In  the  same  case  held  that  if  the  holder  of  cou- 
pons sells  them  to  a  purchaser,  agreeing  with  him  that 
the  State  will  receive  them  for  taxes,  the  refusal  of  the 
State  constitutes  no  injury  to  him,  for  which  he  can  sue 
the  State.  Even  if  it  were  suable,  it  can  not  be  sued  by 
the  vendor  of  the  coupons.     Id. 

14.  That  no  suit  in  a  Federal  court  can  be  brought 
against  the  State  of  Virginia  or  against  her  executive 
officers  to  control  their  official  functions  as  agents  of  the 
State;  and  that  any  lawful  holder  of  a  tax-receivable 
coupon,  who  tenders  the  same  for  taxes  and  continues 
to  hold  it,  is  entitled  to  be  free  from  molestation  in  per- 
son or  goods  on  account  of  such  taxes,  etc.,  and  to  enjoin 
or  redress  such  molestation.  McGahey  v.  Virginia, 
135  U.  S.,  662. 

15.  That  the  Act  of  January  26,  1886,  compelling 
the  taxpayer  tendering  the  coupon  to  produce  the  orig- 
inal bond  at  the  time  of  offer,  is  an  unreasonable  condi- 
tion often  impossible  of  performance,  onerous,  and 
often  having  the  effect  of  destroying  the  value  of  the 
coupon,  and  is  therefore  void.     Id. 

16.  That  the  provision  of  that  act  prohibiting  expert 
testimony  in  establishing  the  genuineness  of  coupons  is 
in  like  manner  void.     Id. 

17.  That  it  is  questionable  whether  the  Act  of  MarcK 
17,  1887,  requiring  a  suit  to  be  brought  against  the  tax- 


168  CONSTITUTION  OF  UNITED  STATES.         [Art.  I, 

payer  wlio  tenders  payment,  is  not  a  law  impairing  the 
obligation  of  the  contract.     Id. 

18.  That  when  a  judgment  is  recovered  for  taxes  and 
costs  of  suit  the  judgment  debtor  may  tender  coupons 
in  payment.     Ellett  v.  Virginia,  135  U.  S.,  662. 

19.  That  the  special  license  tax  imposed  by  the  stat- 
ute of  Virginia  for  the  right  to  offer  tax-receivable  cou- 
pons for  sale,  was  void  as  impairing  their  negotiability. 
Cuthbert  v.  Virginia,  135  U.  S.,  662. 

20.  That  an  unreasonably  short  statute  of  limita- 
tions works  an  impairment  of  the  contract.  Brown's 
Case,  135  U.  S.,  662. 

21.  That  the  State  may  require  a  license  to  sell  li- 
quors to  be  paid  in  lawful  money,  as  that  is  not  a  tax; 
and  such  law  does  not  impair  the  obligation  of  the  con- 
tract.    Hucless  V.  Childrey,  135  U.  S.,  662. 

22.  That  the  statute  requiring  the  school  tax  to  be 
paid  in  lawful  money  is  not  void,  as  impairing  the  tax- 
receivable  coupon  statute,  because  when  the  bond  issue 
of  1871  was  enacted,  a  prior  statute  of  1869  had  pro- 
vided for  the  school  fund  as  a  trust  fund  applicable  in 
money  to  the  support  of  free  public  schools.  Vashon  v. 
Greenhow,  135  U.  S.,  552,  716. 

23.  Finally,  after  many  decisions  of  the  highest 
court  of  Virginia,  that  the  Act  of  1871,  called  the 
^Tunding  Act"  was  valid,  and  after  many  decisions  of 
the  Supreme  Court  to  the  same  effect,  the  Virginia 
court  decided  in  1894  that  the  "Funding  Act"  was 


Sec.   10.]    IMPAIRING  CONTRACT  OBLIGATIONS.  169 

void.  The  Supreme  Court  of  the  United  States  held 
that  it  is  not  bound  by  this  decision,  and  reverses  it, 
holding  the  act  valid,  and  adhering  to  the  former  de- 
cisions.    McCullough  V.  Virginia,  172  IT.  S.,  102. 

Exclusive  franchise. — The  grant  of  "the  exclusive 
privilege  of  erecting  and  establishing  gas  works  in  the 
city  of  Louisville  during  the  continuance  of  this  char- 
ter and  of  vending  coal-gas  lights  and  supplying  the 
city  and  citizens  with  gas  by  means  of  public  works," 
etc.,  held  to  be  irrepealable  and  not  amendable.  Louis- 
ville Gas  Co.  V.  Citizens'  Gas  Co.,  115  U.  S.,  683. 

The  exclusive  right  or  franchise  to  supply  water 
to  a  city  and  its  inhabitants  through  pipes  and  mains 
laid  in  the  public  streets,  is  violated  by  a  grant  to  an 
individual  in  the  municipality  of  the  right  to  supply  his 
premises  with  water  by  means  of  pipes  laid  through  the 
streets.  E"ew  Orleans  Water  Works  Co.  v.  Rivers,  115 
XJ.  S.,  674. 

State  laws  impairing  the  obligations  of  contract; 
general  principles. — Laws  of  a  State,  which  impair  con- 
tract obligations,  are  null  and  void  to  that  extent;  and 
courts  in  enforcing  such  contracts  pursue  the  same 
course  as  though  such  void  laws  had  not  been  passed. 
Louisiana  v.  Pilsbury,  105  U.  S.,  278. 

State  statutes  in  force  when  the  contract  is  made, 
limiting  the  creditor's  rights  to  enforce  his  claims,  are 
not  void  as  impairing  the  obligations  of  the  contract. 
Demny  v.  Bennett,  128  U.  S.,  489. 


170  COI^STITUTIOTT  OF  UNITED  STATES.  [Art.  I, 

Whatever  belongs  merely  to  the  remedy  may  be  al- 
tered by  the  State  so  that  it  does  not  impair  the  obliga- 
tion. Hill  V.  Merchants,  etc.,  Co.,  134  U.  S.,  615.  But 
if  it  so  affects  the  obligation  of  the  contract,  it  is  void. 
Seibert  v.  United  States,  122  U.  S.,  284. 

The  Constitution  of  a  State  is  a  law  within  the  mean- 
ing of  this  prohibition  against  the  impairing  of  contract 
obligations.  Miss.,  etc.,  E.  Co.  v.  McClure,  10  Wall., 
511 ;  Mech.  and  Traders  B'k  v.  Thomas,  18  How.,  384; 
White  V.  Hart,  13  Wall.,  646 ;  Delmas  v.  Merchants' 
Mut.  Ins.  Co.,  14  Wall.,  661 ;  Gunn  v.  Barry,  15  Wall., 
610 ;  Davis  v.  Gray,  16  Wall.,  203 ;  Tisk  v.  Police  Jury, 
116  U.  S.,  131 ;  Bier  v.  McGehee,  148  U.  S.,  137. 

The  Constitution  of  Louisiana  of  1879  abolishing 
monopolies  was  held  void  as  to  a  previous  contract  giv- 
ing exclusive  privileges.  St.  Tammany  Waterworks 
V.  'New  Orleans  Water  Works,  120  U.  S.,  64. 

A  contract,  void  when  made,  by  the  Constitution  as 
then  expounded  by  the  highest  court  in  the  State,  can 
not  be  impaired  by  subsequent  action  of  the  legislature 
or  decision  of  the  judiciary.  Havemeyer  v.  Iowa 
County,  3  Wall.,  294;  Gelpcke  v.  Dubuque,  1  Wall., 
175;  Chicago  v.  Sheldon,  9  Wall.,  50;  Olcott  v.  The 
Supervisors,  16  Wall.,  678 ;  Memphis  v.  United  States, 
97  U.  S.,  293.  '    ;  i1 

Laws  impairing  obligations  of  contracts,  but  passed 
by  Texas  before  her  admission  into  the  Union,  are  not 


Sec.    10.]    IMPAIRIT^G  CONTRACT  OBLIGATIONS.  I'll 

affected  by  this  prohibition.  League  v.  De Young,  11 
How.,  185 ;  Herman  v.  Phalen,  14  How.,  Y9. 

This  provision  of  the  Constitution  does  not  extend  to 
a  State  law  enacted  before  the  Constitution  went  into 
operation.     O wings  v.  Speed,  5  Wheat.,  420. 

A  State  Constitution  is  not  a  contract  within  the 
meaning  of  this  article  of  the  Constitution.  Church  v. 
Kelsej,  121  U.  S.,  282.  The  amendment  of  a  Consti- 
tution, so  as  to  allow  a  court  of  equity  to  try  a  suit  by 
the  holder  of  an  equitable  interest  against  the  holder  of 
the  legal  title,  impairs  no  contract  obligation.     Id. 

This  provision  of  the  Constitution  necessarily  refers 
to  a  law  made  after  the  particular  contract  in  suit. 
Lehigh  Water  Co.  v.  Easton,  121  U.  S.,  388. 

Laws  affecting  remedies. — The  remedy  subsisting  in 
a  State,  when  and  where  a  contract  is  made,  is  a  part 
of  its  obligation,  and  any  subsequent  law  which  so  af- 
fects the  remedy  as  to  impair  and  lessen  the  value  of 
the  contract  is  forbidden  by  the  Constitution.  Seibert 
v.  Lewis,  122  U.  S.,  284 ;  Bronson  v.  Kinzie,  1  How., 
311 ;  Edwards  v.  Kearzey,  96  U.  S.,  595. 

The  legislature  can  not  take  away  existing  remedies, 
though  it  may  modify  or  substitute  others  for  them, 
equally  sufficient.  Walker  v.  Whitehead,  16  Wall., 
314;  Fullerton  v.  Bank,  U.  S.,  1  Pet.,  604;  Terry  v. 
Anderson,  95  U.  S.,  628 ;  Cairo,  etc.,  E.  Co.  v.  Hecht, 
95  id.,  168 ;  Tennessee  v.  Sneed,  96  U.  S.,  69 ;  Men^phis 


172  COJ^STITUTION-  OF  UNITED  STATES.         [Art.  I, 

V.  United  States,  97  U.  S.,  293 ;  Mempliis  v.  Brown,  97 
U.  S.,  300. 

When  a  State,  in  modifying  remedies  to  enforce  a 
contract,  does  so  in  a  way  to  impair  substantial  rights, 
the  attempted  modification  is  within  the  prohibition 
and  to  that  extent  void.     White  v.  Hart,  13  Wall.,  647. 

Where  a  statute  was  in  force,  when  the  bonds  of  a 
municipality  were  issued,  authorizing  the  levy  of  a  tax 
to  pay  interest  aud  principal  on  the  bonds,  the  legisla- 
ture can  not  repeal  it  so  far  as  such  bonds  are  concerned. 
Van  Hoffman  v.  Quincy,  4  Wall.,  535;  Galena  v. 
Amy,  5  Wall.,  705 ;  Wolff  v.  IS^ew  Orleans,  103  U.  S., 
358 ;  Eolls  County  v.  United  States,  105  U.  S.,  733 ; 
Louisiana  v.  St.  Martin's  Parish,  111  U.  S.,  716. 

An  act  of  the  legislature  of  the  State  of  Texas  for  the 
relief  of  railroad  companies  indebted  to  the  State,  pro- 
vided that  State  treasury  warrants  drawn  by  State  au- 
thority should  be  received  in  payment  of  certain  dues 
to  the  State.  The  repeal  of  this  act  was  held  to  impair 
the  obligation  of  a  contract.  Houston,  etc.,  R.  Co.  v. 
Texas,  177  U.  S.,  66. 

An  act  of  Pennsylvania  of  June  30,  1885,  assessed 
a  tax  of  three  mills  on  the  dollar  to  be  levied  on  moneys, 
loans,  stocks,  moneyed  capital,  etc.,  in  the  hands  of  in- 
dividual citizens  of  that  State,  and  required  the  treas- 
urer of  private  corporations,  incorporated  under  other 
States  and  doing  business  in  Pennsylvania,  when  pay- 
ing interest  upon  its  bonds,  etc.,  held  by  residents  of 


Sec.   10.]    IMPAIEIIs^G  COISTTEACT  OBLIGATIONS.  173 

that  State,  to  assess  a  tax  upon  it  and  report  to  the  Au- 
ditor General  of  the  State,  and  to  pay  the  tax  so  assessed 
and  collected  into  the  State  treasury.  Held,  that  this 
act  impaired  the  ohligation  of  an  earlier  act  made  with 
a  railroad  company  and  was  invalid.  IsTew  York,  Lake 
Erie  &  Western  Ey.  Co.  v.  Pennsylvania,  153  U.  S., 
628. 

A  contract  hy  a  State  to  receive  its  own  warrants  in 
payment  for  dues  to  the  State  would  he  impaired  hy  a 
suhsequent  statute  repudiating  the  first.  Houston,  etc., 
Ey.  Co.  V.  Texas,  177  U.  S.,  %%. 

A  party,  whose  interests  are  affected  hy  a  State  stat- 
ute, can  not  set  up  that  the  statute  impairs  the  ohliga- 
tion of  a  contract  to  which  he  is  not  a  party.  Williams 
V.  Eggleston,  170  II.  S.,  304. 

Laches  and  acquiescence  may  waive  the  right  to  claim 
that  a  State  law  impairs  the  ohligation  of  a  contract. 
Pierce  v.  Somerset  E'y  Co.,  171  U.  S.,  641. 

The  question  whether  the  right  to  claim  that  a  State 
law  impairs  a  contract  had  heen  lost  by  laches  is  not  a 
"Federal  question."  Eustis  v.  BoUes,  150  TJ.  S.,  361j 
Kutland  E.  Co.  v.  Cent.  Yt.  E'y  Co.,  159  U.  S.,  630; 
Seneca  ISTation  v.  Christy,  162  U.  S.,  283. 

The  act  of  the  legislature  of  Ohio  imposed  a  toll 
upon  passengers  in  mail  stage  coaches  over  the  Cumber- 
land road,  to  the  exclusion  of  all  other  passengers,  does 
in  effect  exact  a  toll  of  mail  coaches,  and  thus  imposes 
upon  the  United  States  a  part  of  the  burden  of  support- 


174  CONSTITUTION  OF  UNITED  STATES.  [Art.  I, 

ing  the  Cumberland  road,  contrary  to  the  compact  be- 
tween the  State  of  Ohio  and  the  United  States.  !N'eil 
V.  Ohio,  3  How.,  720. 

Implied  contracts. — The  prohibition  against  State 
laws  impairing  the  obligations  of  contracts,  applies  as 
well  to  implied  as  to  express  contracts.  Fish  v.  Jeffer- 
son Police  Jury,  116  U.  S.,  131.  A  law  which  at- 
taches a  fixed  compensation  to  a  public  office  during  the 
whole  term  of  one  legally  filling  it  and  performing  the 
duties,  raises  an  implied  obligation  to  pay  for  the  ser- 
vices at  the  fixed  rate,  to  be  enforced  by  the  remedies 
the  law  then  gave ;  and  a  change  in  the  State  Constitu- 
tion which  takes  away  the  powers  of  taxation  to  pay 
such  officer  so  as  to  debar  him  from  means  of  collecting 
his  compensation,  falls  within  the  constitutional  inhibi- 
tion.    Fish  V.  Jefferson  Police  Jury,  116  U.  S.,  132. 

Instances  in  which  the  State  legislation  has  been  held 
not  to  impair  the  obligation  of  contracts. — Under  a  law 
allowing  imprisonment  for  debt,  H  gave  bond  with  sure- 
ties to  remain  a  true  prisoner  until  lawfully  discharged. 
An  act  of  the  legislature  discharging  such  prisoners  did 
not  impair  the  obligation  of  a  contract.  That  a  debtor 
shall  be  imprisoned  for  failure  to  pay  is  no  part  of  the 
contract.  Mason  v.  Haile,  12  Wheat.,  373;  Beers  v. 
Haughton,  9  Pet.,  329. 

A  State  law  which  makes  valid  a  contract  that  was 
void  does  not  impair  the  obligation  of  a  contract.  Sat- 
terlee  v.  Matthewson,  2  Pet.,  380. 


Sec.   10.]    IMPAIRIIs^G  CON^TKACT  OBLIGATIONS.  175 

A  patent  from  a  State  granting  land  does  not  amount 
to  a  contract  that  the  patentee  and  his  assigns  shall  en- 
joy the  land  free  from  all  legislative  regulations  in  vio- 
lation of  the  Constitution  of  the  State;  but  only  that 
the  State  will  not  impair  the  force  of  the  grant ;  and  a 
later  State  law  repugnant  to  the  State  Constitution  does 
not  impair  the  obligation  of  a  contract.  Jackson  v. 
Lampshire,  3  Pet.,  280. 

A  bank  in  Khode  Island  was  chartered,  but  the  char- 
ter was  silent  as  to  taxation.  A  later  law  imposed  a 
tax  on  the  capital  stock,  and  was  held  not  to  impair  ob- 
ligation, etc.  Providence  Bank  v.  Billings,  4  Pet., 
514. 

The  obligations  of  the  contract  are  not  impaired  by 
the  dissolution  of  a  bank:  1.  Because  its  creditors 
contracted  with  reference  to  the  possibility  of  such  dis- 
solution; and,  2,  because  the  obligations  survive  and 
may  be  prosecuted  against  its  property;  hence  a  State 
may  provide  for  the  dissolution  of  a  corporation,  and 
the  disposition  of  its  assets  for  the  benefit  of  creditors. 
Mumma  v.  Potomac  Company,  8  Pet.,  281. 

There  e'xisted  a  ferry  across  the  Charles  river,  and  its 
profits  belonged  to  Harvard  College,  granted  to  it  in 
1650.  The  State  created  a  corporation  in  1828,  em- 
powered it  to  build  a  bridge  and  take  tolls.  The  char- 
ter contained  no  express  words  to  the  effect  that  it 
would  not  authorize  another  bridge  to  be  built  to  the  in- 
jury of  the  corporators.     Held,  that  another  corpora- 


176  CONSTITUTION  OF  UNITED  STATES.         [Art.  I^ 

tion  to  erect  and  maintain  a  bridge  to  be  free  after  six 
years  so  near  the  first  as  virtually  to  deprive  it  of  all 
tolls,  did  not  impair  the  obligation  of  a  contract. 
Charles  Kiver  Bridge  v.  Warren  Bridge,  11  Pet.,  420. 

Under  a  statute  of  Virginia  permitting  courts  to  grant 
ferry  license  but  making  it  unlawful  to  grant  any  li- 
cense for  a  ferry  within  one-half  mile  of  any  other 
ferry,  a  ferry  license  is  not  a  contract,  and  subsequent 
legislation  giving  right  to  maintain  ferries  within  such 
distance  is  valid.     Williams  v.  Wingo,  179  U.  S., . 

The  lands  set  apart  for  a  university  in  Ohio,  by  Con- 
gress, were  given  by  the  State  to  a  corporation,  with 
power  to  lease  the  same  at  certain  rents  and  to  increase 
the  same  from  time  to  time,  to  the  amount  of  taxes  im- 
posed on  similar  property.  The  lands  were  to  be  for- 
ever exempt  from  taxation.  Afterwards  a  law  author- 
ized the  trustees  to  sell  the  land  in  fee  simple.  Heldy 
that  they  could  after  sale  be  taxed.  The  purchasers 
could  not  claim  such  exemption.  Armstrong  v.  Treas- 
urer of  Athens  Co.,  16  Pet.,  281. 

The  State  of  Maryland  passed  a  law  to  subscribe 
$1,000,000  to  the  stock  of  the  Baltimore  and  Ohio  rail- 
road company,  with  a  proviso  in  the  act,  that  if  the  road 
should  not  be  so  located  to  pass  through  certain  towns 
in  the  county  of  Washington,  the  company  should 
forfeit  $1,000,000  to  the  State  for  the  use  of  that 
county.  By  a  subsequent  law  the  State  released  this 
claim  of  $1,000,000,  the  road  having  been  located  so  as 


Sec.   10.]    IMPAIRING  CONTRACT  OBLIGATIONS.  177 

not  to  pass  through  those  towns.  Held,  that  this  was 
not  a  contract  with  Washington  county,  but  a  mere  pen- 
alty which  the  State  could  release,  and  that  the  release 
was  valid,  and  nothing  was  due  to  the  county.  Mary- 
land V.  Baltimore  &  Ohio  E.  K.  Co.,  3  How.,  534. 

A  corporation  was  chartered  to  build  a  bridge  and 
take  tolls  for  passing  the  same.  A  later  law  provided 
for  taking  it  as  a  public  highway  upon  just  compensa- 
tion to  the  corporation.  This  did  not  impair  the  obli- 
gation of  a  contract..  West  River  Bridge  Co.  v.  Dix,  d 
How.,  507. 

A  retrospective  law,  which  enables  banking  corpora- 
tions to  sue  in  their  own  names  on  notes  payable  to  their 
cashiers,  impairs  no  contract  obligation.  Crawford  v. 
Branch  Bank  of  Mobile,  7  How.,  279. 

A  law  prohibiting  any  bank  from  transferring  by  in- 
dorsement or  otherwise,  any  note,  bill  receivable  or 
other  evidence  of  debt,  impairs  the  obligation  of  a  con- 
tract between  the  State  and  an  existing  bank,  empow- 
ered by  its  charter  to  acquire  and  dispose  of  goods,  chat- 
tels and  effects  of  every  kind,  and  to  discount  bills  and 
notes.  Planters'  Bank  of  Mississippi  v.  Sharp,  6  How., 
301. 

A  clause  in  the  charter  of  a  railroad  corporation  en- 
abled it  to  have  land  condemned  to  its  use  on  payment 
of  valuation  assessed  by  an  inquisition.  The  legisla- 
ture set  aside  an  inquisition  found  in  1836,  confirmed 

in  1837,  but  under  which  the  company  had  made  no 
12 


178  COIS^STITUTIOW"  OF  UI^ITED  STATES.  [Art.  I, 

payment  or  tender  until  after  passage  of  act  setting  it 
aside.  Held,  no  impairment  of  contract.  Baltimore, 
etc.,  E.  Co.  V.  E'esbit,  10  How.,  395. 

The  appointment  to  an  office  with  fixed  term  and 
compensation  under  existing  law  is  not  a  contract.  A 
law  may  be  passed  abolishing  the  office  and  changing 
compensation,  without  impairing  contract  obligation. 
Butler  V.  Pennsylvania,  10  How.,  402.  A  contract  for 
services  by  a  commissioner  is  a  contract,  which  can  not 
be  impaired  by  State  legislation.  Hall  v.  Wisconsin, 
103  U.  S.,  5.     See  ante,  p.  174. 

A  charter  granted  by  a  State  provided  that  the  State 
would  not  for  thirty  years  "allow  any  other  railroad  to 
be  constructed  between  the  city  of  Richmond  and  the 
city  of  Washington,"  "the  probable  effect  of  which 
would  be  to  diminish  the  number  of  passengers  travel- 
ing between  the  one  city  and  the  other,"  "or  to  compel 
the  company,  in  order  to  retain  such  passengers  to  re- 
duce the  passage  money."  Held,  that  the  stipulation 
construed  strictly  against  the  company,  did  not  prevent 
the  chartering  of  another  road,  to  carry  merchandise 
exclusively.  Richmond,  etc.,  R.  Co.  v.  Louisa  R.  R. 
Co.,  13  How.,  71. 

A  State,  if  not  restrained  by  its  Constitution,  may 
make  a  binding  contract  with  a  banking  corporation, 
in  its  charter,  that  no  more  than  a  certain  amount  of 
taxes  shall  be  levied  on  its  property  for  a  term  of 
years;  and,  in  this  case,  it  was  held  that  the  charter 


Sec.   10.]    IMPAIEING  CONTRACT  OBLIGATIONS.  179 

provisions  did  amount  to  a  contract.  State  Bank  of 
Ohio,  Piqua  Branch,  v.  Knoop,  16  How.,  369.  The 
fact  that  after  this  act  was  passed  declaring  that  only- 
such  taxes  should  be  levied,  and  after  the  later  act, 
which  impaired  the  obligation  of  the  contract,  a  con- 
stitution of  the  State  was  adopted  providing  for  the 
taxation  on  a  more  onerous  basis  of  the  bank  thus  pro- 
tected by  its  charter  made  no  difference.  A  State  can 
not,  by  a  change  of  its  Constitution,  release  itself  from 
contracts  lawfully  made  under  the  Constitution  as  ex- 
isting when  the  contracts  were  made.  Dodge  v.  Wool- 
sey,  18  How.,  331. 

A  permission  by  a  State  to  be  sued  is  not  a  contract 
whose  obligations  were  impaired  by  the  passage  of  a 
subsequent  law  imposing  conditions  to  the  bringing  or 
maintaining  of  such  suits.  Beers  v.  Arkansas,  20 
How.,  527. 

A  railroad  charter  authorized  the  commissioners  of 
a  county  through  which  the  railroad  passed  to  sub- 
scribe for  stock  and  issue  bonds  when  and  after  a  ma- 
jority of  the  voters  of  the  county  had  so  voted.  An 
election  was  held  and  a  majority  vote  was  that  the  sub- 
scription should  be  made.  Before  the  subscription 
had  bee-n  made,  a  new  constitution  went  into  effect 
prohibiting  counties  from  making  such  subscriptions. 
Held,  that  the  vote  to  subscribe  did  not  amount  to  a 
contract,  which  was  impaired  by  the  constitutional  pro- 


180  COIs'STITUTION  OF  UNITED  STATES.         [Art.  I, 

hibition.     Aspinwall  v.  Commissioners  of  Daviess  Co., 
22  How.,  364. 

The  legislature  of  Wisconsin  authorized  the  town  of 
Sheboygan  to  subscribe  aid  to  a  railroad,  and  provided 
that  the  taxes  necessary  to  raise  money  to  pay  the  bonds 
issued  for  such  subscription  should  be  levied  exclu- 
sively on  real  estate.  Held,  that  a  prior  act,  by  which 
no  such  distinction  was  made  as  to  taxation  constituted 
no  contract  with  the  bond  holders  against  exempting 
personal  property  from  taxation  for  that  purpose. 
Oilman  v.  Sheboygan,  2  Black.,  510. 

The  State  of  Indiana  contracted*  debts  for  the  benefit 
of  the  Wabash  and  Erie  Canal  company,  pledging  the 
canal  and  its  revenues  for  the  payment  of  the  loans, 
and  making  them  a  lien  thereon,  according  to  the  prior- 
ity of  the  statutes  which  authorized  the  loans.  These 
loans  and  liens  were  contracts,  and  it  was  not  in  the 
power  of  the  legislature  to  impair  them.  Acts  of  the 
legislature  submitting  propositions,  for  settlement 
with  creditors,  leaving  it  voluntarily  with  them  to  set- 
tle or  not,  do  not  impair.  Trustees  Wabash  Canal  Co. 
V.  Beers,  2  Black.,  448. 

The  legislature  of  E'ew  Jersey  gave  a  power  to  certain 
bridge  commissioners  to  contract  for  a  bridge  over  the 
Hackensack  river,  and  by  the  same  statute  enacted 
that  "the  contract  should  be  v^lid  and  binding  on  the 
parties  contracting  as  well  as  on  the  State  of  ISTew 
Jersey,"  and  that  it  should  not  be  lawful  for  any  per- 


Sec.   10.]    IMPAIRING  CONTRACT  OBLIGATIONS.  181 

son  to  erect  any  other  bridge  over  or  across  the  said 
river  for  ninety-nine  years.  This  is  a  contract  whose 
obligation  the  State  can  not  impair ;  but  a  railway  via- 
duct by  which  cars  and  engines  can  be  run  across  said 
river,  the  only  road-way  being  the  iron  rails,  laid  on 
ties,  and  on  which  it  is  impossible  for  man  or  beast  to 
cross  is  not  a  bridge  within  the  meaning  of  the  con- 
tract. Bridge  Proprietors  v.  Hoboken  Company,  1 
Wall.,  116. 

Where  a  State  grants  no  exclusive  privilege  to  one 
company  which  it  incorporates,  it  impairs  no  contract 
by  incorporating  a  second  one,  which  it  largely  man- 
ages and  profits  by  to  the  injury  of  the  first.  Turn- 
pike Co.  V.  State  of  Maryland,  3  Wall.,  210. 

A  statute  of  a  State  releasing  "whatever  interest"  in 
certain  real  estate  the  State  might  have  "rightfully," 
is  not  a  law  impairing  the  obligation  of  a  contract, 
which  had  been  previously  made  with  an  agent  of  the 
State,  by  which  he  acquired  an  interest  in  half  of  the 
lot  and  undertook  to  sell  and  convey  the  whole  of  it. 
The  statute  would  only  apply  to  the  remaining  half 
owned  by  the  State.  Mulligan  v.  Corbins,  7  Wall., 
487. 

"No  question  can  arise  as  to  a  law  impairing  the  ob- 
ligation of  a  contract,  when  the  law  was  itself  in  force 
when  the  contract  was  made.  Railroad  Co.  v.  Mc- 
Clure,  10  Wall.,  611. 

A  statute  which  requires  the  holder  of  a  tax  certifi- 


182  CONSTITUTION  OF  UNITED  STATES.  [Art.  I, 

cate  made  before  its  passage  to  give  notice  to  an  occu- 
pant of  tlie  land,  if  there  be  one,  before  he  takes  his  tax 
deed,  does  not  impair  the  obligation  of  the  contract 
evidenced  by  the  certificate.  Curtis  v.  Whitney,  13 
Wall.,  68. 

An  act  incorporated  a  college  to  be  known  by  the 

name  of  the  Jefferson  College  in  C ;  and  declared 

the  act  should  be  the  "inviolable  constitution  of  the 
College  forever,"  "not  to  be  altered  by  any  ordinance 
or  law  of  the  trustees,  or  in  any  other  manner  than  by 
an  act  of  the  legislature."  A  subsequent  law,  with  the 
consent  of  the  trustees,  authorized  the  removal  of  the 
college  and  its  consolidation  with  another  on  certain 
terms.  Held,  that  no  law  impairing  obligation  of  any 
contract  had  been  passed.  Pennsylvania  College 
Cases,  13  Wall.,  190. 

A  law  offering  all  persons  and  corporations  to  be 
formed  for  the  purpose  a  bounty  on  salt  manufactured, 
and  exemption  from  taxation  of  the  property  used  for 
the  purpose,  is  not  a  contract  in  such  sense  that  it  can 
not  be  repealed.  Salt  Company  v.  East  Saginaw,  13 
Wall.,  373. 

This  provision  of  the  Constitution,  that  "no  State 
shall  pass  any  law  impairing  the  obligation  of  con- 
tracts" does  not  forbid  a  State  from  legislating,  to  re- 
duce the  rate  of  interest  on  judgment  previously  ren- 
dered, as  the  allowance  of  such  interest  is  not  by  con- 


Sec.  10.]   impaikijs^g  conteact  obligations.  183 

tract  but  is  allowed  or  not  in  the  State's  discre'tion. 
Morley  v.  Lake  Shore  and  M.  E'y  Co.,  146  U.  S.,  162. 

Removal  of  county  seat. — An  act  of  Ohio  legislature 
that  a  county  seat  should  be  permanently  established  in 
a  certain  place  does  not  constitute  a  contract,  and  there 
is  no  stipulation  that  the  county  seat  shall  not  be 
changed.     !N'ewton  v.  Mahoning  Co.,  100  TJ.  S.,  548. 

As  to  stopping  at  stations. — The  railroad  commis- 
sioner of  Connecticut  consented  that  a  railroad  company 
might  discontinue  one  of  its  stations.  A  subsequent  law 
required  the  company  to  stop  its  trains  at  that  station, 
and  was  held  not  to  impair  a  contract.  'New  Haveoi, 
etc.,  Co.  V.  Hamersley,  104  U.  S.,  1. 

The  Granger  cases. — The  right  of  a  State  to  reason- 
ably limit  the  amount  of  charges  by  a  railroad  com- 
pany for  the  transportation  of  persons  and  property; 
within  its  jurisdiction,  can  not  be  granted  away  by  its 
legislature  unless  by  words  of  positive  grant,  or  words 
equivalent  in  law.  A  grant  of  a  charter  with  the 
words  "from  time  to  time  to  ^x,  regulate  and  revise  the 
tolls  and  charges  by  them  to  be  received  for  transporta- 
tion" does  not  deprive  the  State  of  its  power  to  act 
upon  the  reasonableness  of  the  tolls  and  charges  so 
fined  and  regulated.  Stone  v.  Farmers'  Loan  &  Trust 
Co.,  116  U.  S.,  307;  Kailroad  Co.  v.  Maryland,  21 
Wall.,  456;  C,  B.  &  Q.  E.  E.  Co.  v.  Iowa,  94  U.  S., 
164;  Peck  v.  Chic.  &  K  W.  Ey.,  94  U.  S.,  164;  Wi- 
nona &  St.  Peters'  E.  E.  Co.  v.  Blake,  94  U.  S.,  180; 


184  CON-STITTJTION  OF  UNITED  STATES.         [Art.  I, 

Buggies  V.  Illinois,  108  U.  S.,  526.     See  Munn  v.  Il- 
linois, 94  U.  S.,  114.     See  post,  p.  350. 

Set-offs  allowed. — A  State  law  authorizing  a  debtor 
of  a  municipality  to  procure  the  obligations  of  the  mu- 
nicipality and  set  them  off  against  his  own  debt,  is  not 
an  impairment  of  the  obligation  to  the  creditors  of  the 
corporation,  but  a  legitimate  application  of  the  doc- 
trine of  set-off.  Amy  v.  Shelby  Co.  Taxing  District, 
114  U.  S.,  387. 

Excluding  from  professions  not  impairment. — A. 
statute  forbidding  persons  to  practice  medicine,  who 
have  been  convicted  of  felony,  does  not  impair  obli- 
gation of  contracts,  nor  is  it  ex  post  facto.  Hawker 
V.  l^ew  York,  170  U.  S.,  189. 

The  contract  of  marriage  is  not  a  contract  within  the 
meaning  of  the  provision  of  the  Constitution  prohibit- 
ing States  from  impairing  the  obligations  of  contracts, 
as  that  clause  has  never  been  understood  to  embrace 
other  contracts  than  those  which  respect  property,  or 
some  obje-ct  of  value,  and  confer  rights  which  may  be 
asserted  in  a  court  of  justice.  Hunt  v.  Hunt,  131 
U.  S.,  clxv.  Appendix. 

Compromises  of  municipal  debts. — An  act  of  Ten- 
nessee legislature  of  March  23,  1883,  authorized  mu- 
nicipal corporations  to  compromise  their  debts  by  the 
issue  of  new  bonds  at  the  rate  of  50  per  cent,  of  the 
principal  and  past  due  interest;  and  made  such  new 
bonds  and  matured  coupons  receivable  in  payment  of 


Sec.   10.]    IMPAIRII^G  CONTRACT  OBLIGATIONS.  185 

back  taxes  at  the  same  rate  as  the  bonds  known  as 
^Tlippin  Bonds."  Held,  not  to  divest  the  owners  of 
tinpreferred  debts  of  the  city  of  Memphis  of  any  rights 
conferred  by  previous  legislation.  Amy  v.  Shelby 
Taxing  District,  114  U.  S.,  387. 

Contracts  ultra  vires, — A  contract  with  a  city  void 
because  ultra  vires,  and  having  bee^n  repudiated,  can 
not  be  impaired  by  subsequent  State  legislation.  New 
Orleans  v.  !N'ew  Orleans  Water  Works  Co.,  42  U.  S., 

The  charter  of  a  municipal  corporation  is  not  a  con- 
tract with  the  State.     Id. 

A  contract  with  a  municipal  corporation,  granting 
to  a  contractor  the  sole  privilege  of  supplying  the 
municipality  with  water  from  a  designated  source  for 
a  term  of  years  is  not  impaired  by  a  grant  to  another 
party  of  a  privilege  to  supply  water  from  a  different 
source.  Stein  v.  Bienville  Water  Supply  Co.,  141 
U.  S.,  67. 

While  a  State  can  not  be  compelled  by  suit  to  per- 
form its  contracts,  any  attempt  on  its  part  to  violate 
property  or  rights  acquired  under  its  contracts  may  be 
judicially  resisted;  but  can  not  be  sued  by  one  of  its 
own  citizens  in  a  circuit  court  of  the  United  States, 
without  its  consent.     Hans  v.  Louisiana,  134  U.  S.,  1. 

A  statute  of  Texas  provided  for  sale  of  the  public 
lands.  A  made  application  for  survey  of  part  of  them 
and  paid  fees  for  filing  and  recording  the  same.     A 


186  CONSTITUTION  OF  UNITED  STATES.  [Art.  I,, 

later  statute  withdrew  tlie  lands  from  sale.  Held, 
that  A  acquired  no  such  vested  interest  as  was  im- 
paired by  the  later  act.  Campbell  v.  Wade,  132  U.  S.,. 
34. 

A  provision  of  the  Constitution  of  West  Virginia 
that  the  property  of  a  citizen  should  not  be  sold  under 
final  process  upon  judgments,  etc.,  theretofore  rendered 
because  of  acts  done  according  to  the  usages  of  war, 
during  the  rebellion,  does  not  impair  the  obligation  of 
a  contract.     Fre-eland  v.  Williams,  131  U.  S.,  405. 

Removal  of  college. — The  citizens  of  Millersburg, 
Ky.,  raised  a  fund  for  the  establishment  of  a  college 
institute  at  that  place,  and  invited  the  Kentucky  an- 
nual conference  to  take  charge  of  it  when  established. 
The  invitation  was  accepted  ^nd  the  legislature  incor- 
porated the  act,  with  a  reserved  right  therein  to  amend 
or  repeal.  Later  another  conference  gave  power  to 
remove  the  institution  elsewhere.  Held,  not  to  im- 
pair contract  obligations.  Bryan  v.  Board  of  Educa- 
tion, 151  U.  S.,  639.     See  ante,  p.  182. 

The  Act  of  Louisiana  of  July  12,  1888,  which  au- 
thorized the  enforcement  of  contracts,  by  mandamus 
without  jury,  by  corporations  with  municipal  corpora- 
tions with  reference  to  paving  and  repairing  of  streets,, 
highways  and  bridges,  etc.,  simply  gives  an  additional 
remedy  to  the  party  entitled  to  performance,  without 
impairing  any  substantial  right  of  the  other  party^ 
and  does   not   impair   the   obligation    of  the   contract 


Sec.    10.]     IMPAIRING  CONTRACT   OBLIGATIONS.  187 

sought  to  be  enforced.  !N^ew  Orleans,  etc.,  R.  R.  Co. 
V.  Louisiana,  157  U.  S.,  219. 

Certain  bonds  of  ]!^ortli  Carolina  were  issued  while 
the  Constitution  of  1868  was  in  force.  That  Consti- 
tution provided  that  the  Supreme  Court  of  the  State 
might  hear  claims,  but  that  its  decision  should  be 
merely  recommendatory.  The  repeal  of  this  act  which 
took  away  this  jurisdiction  held  not  to  impair  the  ob- 
ligation of  a  contract.  Baltzer  v.  ISTorth  Carolina,  161 
U.  S.,  240. 

Exemption  from  taxation^  when  not  a  contract. — 
A  statute  of  a  State  making  liable  every  railroad  cor- 
poration for  property  injured  by  fire  from  locomotive 
engines  does  not  impair  contract  obligations  or  contra- 
vene other  constitutional  inhibitions.  St.  Louis,  etc., 
R'y  Co.  V.  Mathews,  165  U.  S.,  1. 

A  State  statute  exempting  the  hall  of  the  Grand 
Lodge  of  F.  A.  M.  from  taxation,  so  long  as  so  occu- 
pied, is  not  a  contract  and  can  be  repealed.  Grand 
Lodge,  etc.,  v.  New  Orleans,  166  U.  S.,  143. 

A  New  Jersey  statute  enacted  that  a  "poor  farm" 
belonging  to  the  city  of  New  Brunswick  and  situate  in 
the  town  of  North  Brunswick,  should  be  subject  to  tax- 
ation in  that  town  so  long  as  it  remained  in  its  limits. 
A  subsequent  statute  enacted  that  this  kind  of  prop- 
erty owned  by  cities,  used  for  charitable  purposes, 
should  be  exempt  from  all  taxation.  The  second  stat- 
ute worked  a  repeal  of  the  first,  and  the  first  was  not  a 


188  coNSTiTUTioisr  of  united  states.       [Art.  I, 

contract.  The  town  had  no  vested  right  to  continue 
this  taxation  of  the  city  of  property  within  its  limits. 
Williamson  v.  'New  Jersey,  130  U.  S.,  189. 

A  corporation  authorized  to  construct  dams,  after 
paying  for  rights  of  owners  above,  may  still  be  re- 
quired, under  Massachusetts  Constitution,  to  construct 
fishways.     Holyoke  Co.  v.  Lyman,  15  Wall.,  500. 

Where  a  trust  company  was  incorporated  and  by  the 
terms  of  its  charter  not  to  be  taxed  at  a  higher  rate 
than  banking  institutions,  Jield,  that  the  rate  of  its 
taxation  might  be  increased  when  that  of  banking  in- 
stitutions was  increased.  Ohio  Life  Ins.  Co.  v.  De- 
balt,  16  How.,  416. 

A  provision  in  an  act  authorizing  a  railroad  com- 
pany that  it  shall  pay  a  certain  tax,  does  not  create  a 
contract  that  no  higher  tax  shall  be  laid.  Delaware 
B.  E.  Tax,  18  Wall.,  206. 

A  law  authorizing  foreign  corporations  to  build  part 
of  their  road  into  a  State,  and  be  taxed  pro  rata  on  the 
stock,  on  the  basis  of  the  cost  of  construction  in  the 
State;  heldj  not  to  be  a  surrender  or  limitation  on 
taxing  power.  Erie  E.  Co.  v.  Pennsylvania,  21  Wall., 
492. 

A  tax  upon  a  railroad  with  reference  to  itself  does 
not  apply  to  lands  granted  to  the  road  as  inducement 
to  build  and  in  the  grant  exempted  from  taxation- 
Tucker  V.  Ferguson,  22  Wall.,  527. 

A  charter  exemption  of  capital  stock  embraces  the 


Sec.  10.]      IMPAIEING  CONTRACT  OBLIGATIONS.  189 

individual  shares.  Tennessee  v.  Whitwortli,  117  U.  S., 
129;  Trask  v.  Maguire,  18  Wall.,  391.  But  not  of 
other  property  of  the  corporation.  Id.  And  a  pledge 
of  the  faith  of  the  State  not  to  tax  a  bank  beyond  a  cer- 
tain amount  or  rate,  if  it  would  perforin  certain  condi- 
tions, protects  the  shareholders  from  any  tax  upon 
them  by  reason  of  their  stock.  Gordon  v.  Appeal  Tax 
Court,  3  How.,  133. 

Exemption  of  capital  stock  is  not  equivalent  to  the 
exemption  of  the  property  into  which  it  is  converted, 
where  another  provision  is  made  exempting  the  road 
and  its  fixtures  for  a  period  of  time.  Memphis,  etc., 
B.  Co.  V.  Gaines,  97  U.  S.,  697. 

The  statute  of  Missouri  of  1882  exempted  the  rail- 
road from  taxation  until  it  was  completed  and  put  in 
operation  and  had  declared  a  dividend,  not  longer 
than  two  years  after  completion.  The  State  ordinance 
of  1865  imposed  a  tax  of  10^  of  its  gross  earnings  be- 
fore the  road  was  completed.  Held,  to  impair  the 
contract  and  tax  illegal.  Pac.  E.  K.  Co.  v.  Maguire, 
20  Wall.,  36. 

Where  the  charter  of  a  railroad  company  forever  ex- 
empts capital  stock  and  dividends,  this  does  not  exempt 
lands  granted  to  the  company,  and  exempt,  by  the 
State,  while  they  remained  unsold.  St.  Louis,  Iron 
M.,  etc.,  E.  Co.  V.  Loftin,  98  U.  S.,  559;  Memphis, 
etc.,  E.  Co.  V.  Loftin,  105  U.  S.,  258. 

The  taxing  power  is  never  presumed  to  be  relin- 


190  COI^STITUTIOW  OF  UNITED  STATES.  [Art.  I, 

quished.      Providence   Bank   v.    Billings,    4    Peters., 
614. 

ISTor,  will  a  contract  to  exempt  be  implied  from  the 
imposing  of  a  license  tax.  Memphis  Gas  Light  Co.  v. 
Shelby  Co.  Taxing  District,  109  U.  S.,  398. 

'Not,  can  it  be  inferred  from  omission  to  tax  in  pre- 
vious years  after  the  exemption  has  expired.  Vicks- 
burg,  etc.,  K.  Co.  v.  Dennis,  116  XJ.  S.,  665.  An  ex- 
emption for  ten  years  after  completion  held  not  to 
work  an  exemption  before  completion.  Id.  A  stat- 
ute exempting  a  hospital  from  taxes  is  not  a  contract 
for  perpetual  exemption.  Eector,  etc.,  v.  County  of 
Philadelphia,  24  How.,  300. 

Admitting  foreign  corporations  to  do  business  in  a 
State  is  not  a  contract. — A  judgment  declaring  a  for- 
feiture of  the  permission  to  a  foreign  corporation  to  do 
business  in  a  State,  other  than  that  of  its  creation,  for 
violation  of  the  statute  under  which  the  permit  was 
given,  does  not  render  such  statute  a  violation  of  a  con- 
tract, as  a  State  may  admit  or  refuse  to  admit  such  cor- 
poration, and  prescribe  conditions  and  terms  of  admis- 
sion.    Waters-Pierce  Oil  Co.  v.  Texas,  177  U.  S.,  28. 

Repeal  of  statutes  when  not  an  impairment. — The 
repeal  by  a  State  of  a  grant  of  power  to  its  courts  to 
audit  claims  against  the  State  does  not  violate  the  ob- 
ligation of  contracts  that  were  entered  into  while  the 
power  existed.  Baltzer  v.  !N'orth  Carolina,  161  U.  S., 
240. 


Sec.    10.]     IMPAIRIXG  CONTRACT   OBLIGATIONS.  191 

The  grants  bj  the  territory  of  Minnesota  to  the  St. 
Anthony  Falls  Water  Power  Company  were  not  im- 
paired by  the  acts  relating  to  the  Saint  Paul  public 
water  works,  as  no  contract  rights  were  granted  para- 
mount to  the  right  of  the  public  to  divert  water  for 
public  use,  and  the  Federal  power  of  regulating  naviga- 
tion and  commerce.  St.  Anthony  Falls  Water  Power 
Co.  V.  St.  Paul  Water  Commissioners,  168  U.  S.,  349. 

The  right  given  a  judgment  creditor  in  Tennessee 
prior  to  1879,  to  seize  the  rents  ^and  profits  of  property 
belonging  to  the  wife  of  his  debtor  was  not  as  to  future 
profits  either  a  vested  or  contract  right  and  could  be 
taken  away  by  legislative  act.  Baker's  Ex'rs  v.  Kil- 
gore,  145  U.  S.,  487. 

A  statute  of  Kentucky  contained  a  clause  that  the 
legislature  might  repeal  or  amend  charters,  unless  a 
contrary  intent  were  therein  plainly  expressed.  While 
this  was  part  of  the  law,  a  bank  was  chartered,  under  a 
banking  law,  which  fixed  a  stated  rate  of  taxation  on 
stock  and  surplus  and  provided  that  if  banks  shall 
consent  thereto  and  waive  all  rights  under  acts  of  Con- 
gress and  agree  to  pay  such  taxes  as  the  act  should  pro- 
vide they  should  be  exempt  from  all  other  taxes  so  long 
as  said  tax  should  be  paid,  during  the  charter's  life. 
Held,  that  the  acceptance  of  a  charter,  while  this  act 
was  in  force,  did  not  constitute  a  contract  whose  obli- 
gation was  impaired  by  a  subsequent  change  in  the  tax 


192  CONSTITUTION  OF  UNITED  STATES.         [Art.  I, 

laws  imposing  additional  taxation.  Citizens  Sav.  Bank 
of  Owensboro  v.  City  of  Owensboro,  173  U.  S.,  636. 

A  railroad  company's  right  to  take  lands,  so  long  as 
it  is  unexecuted,  except  by  filing  a  map  of  location,  is 
not  vested  so  as  to  make  condemnation  by  the  States 
for  otber  purposes  an  impairment  of  a  contract.  Adi- 
rondack K.  Co.  V.  ISTew  York,  176  U.  S.,  335. 

The  provisions  of  the  Constitution  of  West  Virginia 
of  1879,  that  the  property  of  a  citizen  of  the  State 
should  not  "be  seized  or  sold  under  final  process  issued 
upon  judgments  or  decrees  theretofore  rendered,  or 
otherwise,  because  of  any  act  done  according  to  the 
usages  of  civilized  warfare  in  the  prosecution  of  the 
war  of  the  rebellion  by  either  of  the  parties,  does  not 
impair  the  obligation  of  contract  when  applied  to  a 
judgment  previously  obtained  founded  on  tort,  com- 
mitted as  an  act  of  public  war.  Freeland  v.  Williams, 
131  U.  S.,  405. 

State  may  enact  divorce  laws, — The  provision  of  the 
Constitution  to  prohibit  States  from  impairing  con- 
tracts, embraces  only  contracts  respecting  property  or 
some  object  of  value,  and  conferring  rights  enforcible  in 
courts  of  justice.  States  may  pass  laws  regulating  di- 
vorce, liberating  one  party  from  the  marriage  contract, 
which  has  been  broken  by  the  other.  Hunt  v.  Hunt, 
131  clxiv,  Appendix,  Dartmouth  College,  4  Wheat., 
629. 

Void  contract  not  protected  by  this  clause. — ^Where 


Sec.  10.]    IMPAIRING    CONTRACT    OBLIGATIONS.  193 

a  contract  between  a  city  was  void  as  being  ultra  vires, 
and  it  bas  been  repudiated  by  tbe  city,  the  repeal  of  a 
law  under  wbicb  taxes  were  set  off  to  be  paid  to  tbe  con- 
tracting party,  is  not  an  impairment  of  tbe  contract, 
as  there  was  no  valid  contract  in  existence  to  be  im- 
paired by  such  State  legislation;  nor  does  it  deprive 
the  other  party  of  property  without  due  process  of  law. 
itsTew  Orleans  v.  ISTew  Orleans  Water  Works  Co.,  142 
U.  S.,  79. 

Impairment  of  contract  hy  passing  statute  of  limita-' 
tions. — A  statute  of  limitations  may  be  passed  limit- 
ing the  time  in  which  an  action  may  be  brought  upon 
a  pre-existing  contract,  provided  it  leave  a  reasonable 
time  after  the  statute  is  passed  for  the  suit  to  be  com- 
menced, before  the  statute  bars  the  right.  Mitchell  v. 
Clark,  110  U.  S.,  633;  Hart  v.  Lamphire,  5  Pet.,  457; 
Hawkins  v.  Barney,  5  Pet.,  457 ;  Sohn  v.  Waterson,  17 
Wall.,  596;  Terry  v.  Anderson,  95  U.  S.,  628;  Kosh- 
konong  v.  Burton,  104  U.  S.,  668 ;  Sturges  v.  Crownin- 
shield,  4  Wheat.,  122.     See  ante,  p.  168. 

A  statute  of  a  State  limiting  the  time  in  which  ac- 
tions may  be  commenced  does  not  impair  the  obliga- 
tion of  a  pre-existing  contract,  if  it  gives  a  reasonable 
time  in  which  to  commence  the  action  after  the  passage 
of  the  statute.  Wheeler  v.  Jackson,  137  U.  S.,  245; 
McFarland  v.  Jackson,  137  IT.  S.,  258.  Time  may  be 
shortened  from  previous  law,  but  a  reasonable  time 
13 


194:  CON^STITUTION  OF  UNITED  STATES.  [Art.  I, 

must  be  left,  in  which  an  action  upon  a  previous  con- 
tract right  may  be  commenced.     Id. 

A  right  of  action  accrued  in  1851.  In  1859  a  stat- 
ute was  passed  barring  all  actions  of  a  certain  kind 
"not  commenced  within  two  years  next  after  the  cause 
of  action  accrued."  Held,  that  the  cause  of  action  be- 
gan to  run  from  the  date  of  the  statute  of  1859,  and 
not  as  the  statute  seemed  literally  to  mean.  Sohn  v. 
Waterson,  17  Wall.,  596. 

A  statute  of  New  York,  fixing  a  period  of  limita- 
tion upon  actions  or  special  proceedings  to  compel  de- 
livery of  a  lease  upon  any  sale  for  taxes,  etc.,  made  more 
than  eight  years  prior  to  date  of  the  act,  unless  com- 
menced within  six  months,  doe-s  not  impair  the  obliga- 
tion of  a  contract.     Wheeler  v.  Jackson,  137  U.  S.,  245. 

How  far  State  hankrwptcy  or  insolvent  laws  impair 
the  obligations  of  a  contract. — An  act  of  a  State  legisla- 
ture which  discharges  a  debtor  from  all  liability  for 
debts  contracted  before  its  passage  on  his  surrendering 
his  property  for  the  benefit  of  his  creditors,  impairs 
the  obligation  of  a  contract.  Farmers',  etc..  Bank  v. 
Smith,  6  Wheat.,  131. 

A  State  insolvent  law  does  not  impair  the  obliga- 
tion of  future  contracts  between  its  own  citizens.  But 
it  can  not  affect  the  rights  of  citizens  of  other  States. 
Ogden  V.  Saunders,  12  Wheat.,  213. 

A  State  may  pass  a  bankrupt  act  when  there  is  no* 
act  of  Congress  conflicting,  if  it  do  not  impair  the  ob- 


Sec.  10.]    IMPAIRING    CONTRACT    OBLIGATIONS.  195 

ligation  of  a  contract.  An  act  of  N^ew  York  (which 
liberated  the  person  of  the  debtor  and  discharged  him 
from  all  liability)  held  such  an  impairment.  Sturges 
V.  Crowninshield,  4  Wheat.,  122. 

But  if  prospective  and  operative  only  on  future  con- 
tracts such  laws  are  valid.  Ogden  v.  Saunders,  12 
Wheat.,  215.  Following  Sturges  v.  Crowninshield,  it 
was  held  that  a  discharge  given  the  bankrupt  by  a  State 
insolvency  or  bankrupt  law  could  not  be  pleaded  in 
bar  against  a  foreign  debtor  (McMillan  v.  Mc!N"eill,  4 
Wheat.,  212),  as  the  law  is  inoperative  as  to  a  non-resi- 
dent creditor.  Suydam  v.  Broadnax,  14  Pet.,  75. 
Nor,  can  a  suit  pending  in  a  Federal  court  by  a  citizen 
of  another  State  be  abated  on  the  plea  of  such  State 
bankruptcy  proceedings.  Baldwin  v.  Hale,  1  Wall., 
223;  see  Cook  v.  Moffat,  5  How.,  925,  which  holds 
that  the  contract  can  be  sued  on  in  another  State. 

Statutes  limiting  the  right  of  the  creditor  to  en- 
force his  claims  against  the  property  of  the  debtor  are 
part  of  all  contracts  made  after  they  take  effect,  and  do 
not  impair  the  obligations  of  contracts  of  which  they 
are  a  part.     Denny  v.  Bennett,  128  U.  S.,  489. 

The  inhibition  of  the  Constitution  is  wholly  pros- 
pective. The  States  may  legislate  as  to  contracts 
thereafter  made,  as  they  may  see  fit.  It  is  only  those 
in  existence  when  the  hostile  law  is  passed  that  are 
protected  from  its  effect.  Edwards  v.  Kearzey,  96 
U.  S.,  595. 


196  CONSTITUTION  OF  UNITED  STATES.  [Art.  I, 

Certificates  of  discharge  from  debts  granted  by  State 
laws  can  not  be  pleaded  in  bar  of  actions  brought  in 
Federal  courts  by  citizens  of  other  States  or  of  any 
other  State  than  that  where  the  discharge  was  ob- 
tained, unless  it  appears  that  the  plaintiff  proved  his 
debts  against  the  defendant's  estate  in  insolvency,  or 
in  some  manner  became  a  party  to  the  proceedings,  be- 
cause such  laws  have  no  extra  territorial  operation. 
Oilman  v.  Lockwood,  4  Wall.,  409. 

But  where  the  non-resident  creditor  has  voluntarily 
appeared  in  the  State  bankruptcy  proceedings  with  in- 
tent to  waive  his  extra  territorial  immunity,  he  is 
bound  by  the  proceedings  and  as  against  him  they  are 
a  complete  discharge.  Id. ;  Clay  v.  Smith,  3  Pet,  411. 
See  ante^  p.  100. 

PROHIBITION  ON  STATES  FEOM  LAYING  IMPOSTS  OE 

DUTIES. 

Section  10.  "No  State  shall,  without  the  consent  of 
the  Congress,  lay  any  imposts  or  duties  on  imports  or  ex- 
ports, except  what  may  be  absolutely  necessary  for  execut- 
ing its  inspection  laws;  and  the  net  produce  of  all  duties 
and  imposts,  laid  by  any  State  on  imports  or  exports,  shall 
be  for  the  use  of  the  treasury  of  the  United  States;  and  all 
such  laws  shall  be  subject  to  the  revision  and  control  of  the 
Congress." 

What  are  duties  and  imports  or  exports? — A  State 
law  requiring  an  importer  to  take  out  a  license  and  pay 


Sec.  10.]  PROHIBITIONS  ON  STATES.  197 

fifty  dollars,  before  lie  should  be  permitted  to  sell  a 
package  of  imported  goods,  is  in  conflict  with  the  above 
provision,  and,  also,  with  the  clause  giving  Congress 
power  to  regulate  commerce.  Brown  v.  Maryland,  12 
Wheat.,  419.  A  tax  on  the  sale  is  a  tax  on  the  article 
itself.     Id.,  435. 

The  term  "import''  as  used  in  the  above  clause,  does 
not  refer  to  articles  imported  from  one  State  into  an- 
other, but  only  to  articles  imported  from  foreign  coun- 
tries. Hence,  a  uniform  tax  imposed  by  a  State  on  all 
sales  made  in  it,  whether  by  a  citizen  of  that  State  or 
another  State,  does  not  violate  this  clause  of  the  Con- 
stitution. Woodruff  V.  Parham,  8  Wall.,  123 ;  Brown 
V.  Houston,  114  U.  S.,  622. 

Where  the  mode  of  collecting  the  tax  on  articles 
brought  from  another  State  is  different  from  the  mode 
of  collecting  taxes  on  domestic  articles,  but  the  amount 
is  the  same,  this  is  not  a  fatal  discrimination,  and  the 
local  tax  law  is  not  void.  Hinson  v.  Lott,  8  Wall., 
148. 

A  statute  of  Pennsylvania  of  1853,  modified  by  that 
of  April  9,  1859,  required  every  auctioneer  to  collect 
and  pay  into  the  State  treasury  a  tax  on  his  sales. 
This,  when  applied  to  sales  in  the  original  packages,  by 
him  sold  for  the  importer,  is  void  as  a  tax  on  imports 
and  as  a  regulation  of  commerce.  Cook  v.  Pennsyl- 
vania, 97  U.  S.,  566. 

The  words  "inspection  laws,"   "imposts"   and  "ex- 


198  CONSTITUTIOI^  OF  UNITED  STATES.         [Art.  I, 

ports,"  as  used  in  this  clause  have  exclusive  reference 
to  property,   not  to   immigrants ;  and   a  tax   on  every 
alien  passenger  coming  to  a  port  is  a  regulation  of  for- 
eign commerce  and  void.     People  v.  Compagnie  Gen- 
erale  Transatlantique,  107  U.  S.,  59.     See,  ante,  p.  40. 
Goods  imported  from  a  foreign  country,  upon  which 
duties  have  been  paid,  are  not  subject  to  State  taxation 
while  remaining  in  the  original  packages,  unbroken 
and  unsold,  whether  the  tax  is  imposed  on  the  goods  as 
imports   or   a  part   of  the   property   of  the   importer. 
The  goods  are  not  incorporated  into  the  general  mass 
of  property  of  the  State  till  they  have  passed  from  the 
control  of  the  importer.     Low  v.  Austin,  13  Wall.,  29. 
The  ordinance  of  Mobile  required  merchants  to  pay 
a  tax  of  one-half  of  one  per  cent,  on  the  gross  amount 
of  their  sales.     Contracts  for  the  purchase  of  cargoes 
of  foreign  merchandise  before  or  after  the  arrival  in 
the  bay  of  Mobile,  where  the  goods  are  not  to  be  at 
the  risk  of  the  purchaser  until  delivered  to  him  in  the 
bay,  do  not   constitute   the   purchaser  "an   importer," 
and  he  is  liable  to  the  local  tax  on  selling  such  goods. 
Waring  v.  The  Mayor,  8  Wall.,  110. 

The  statute  of  Louisiana  providing  for  inspection  of 
coal,  making  it  compulsory  upon  all  persons  selling  coal 
or  coke  in  the  barge  to  have  the  same  inspected  and 
gauged,  according  to  the  provisions  of  the  act,  is  not  a 
regulation  of  commerce,  nor  an  unconstitutional  dis- 
crimination between  the  coal  of  different  states  coming 


Sec.  10.]  PROHIBITIONS  ON  STATES.  199 

into  Louisiana.     Pittsburg  &  Southern  Coal  Company 
V.  Louisiana,  156  U.  S.,  690. 

"Inspection  laws  are  of  a  more  equivocal  nature ;  and 
it  is  obvious  that  the  Constitution  had  viewed  that  sub- 
ject with  much  solicitude.  They  must  combine  munic- 
ipal and  commercial  regulations;  and  while  the  power 
over  the  subject  is  yielded  to  the  States,  for  the  above 
reasons,  an  absolute  control  is  given  over  State  legis- 
lation on  the  subject,  so  far  as  that  legislation  may  be 
exercised,  so  as  to  affect  the  commerce  of  the  country »'" 
Ch.  J.  Marshall,  in  Gibbons  v.  Ogden,  9  Wheat.,  235^ 
The  power  of  the  States  is  limited  to  the  minimum  of 
expense.  Then,  the  money  so  raised  shall  be  paid  into 
the  treasury  of  the  Uiiited  States,  or  may  be  sued  for  > 
by  them,  since  it  is  declared  to  be  for  their  use.  Id., 
238. 

A  bonus  on  the  basis  of  earnings,  as  the  considera- 
tion for  granting  a  charter,  is  not  an  "impost."  R.  R, 
Co.  V.  Maryland,  21  Wall.,  456. 

Tax  on  'passengers. — A  special  tax  on  railroad  and 
stage  companies  for  every  passenger  carried  out  of  the 
State  by  them  is  a  tax  on  the  passenger  for  passing 
through  the  State.  Such  tax  is  not  in  conflict  with  the 
clause  of  the  Constitution  forbidding  a  State  to  lay  a 
duty  on  exports.  Crandall  v.  l^evada,  6  Wall.,  35. 
But  it  is  void  as  against  interstate  commerce.     Id. 

What  is  a  tax  upon  exports? — A  statute  of  Califor- 
nia which  imposed  a  stamp  duty  on  every  bill  of  lading 


200  CO]S^STITUTIO]S^  OF  UNITED  STATES.         [Art.  I, 

of  gold  or  silver  in  coin  or  bars  or  other  form,  when 
transported  from  any  point  within  to  any  point  with- 
out the  State  is  in  effect  a  tax  upon  a  class  of  exports 
and  the  law  imposing  it  is  void.  Almy  v.  California, 
24  How.,  169. 

Goods,  the  product  of  a  State,  intended  for  exporta- 
tion to  another  State,  are  liable  to  taxation  as  part  of 
the  general  mass  of  property  of  the  State  of  their 
origin,  until  started  in  course  of  transportation  to  the 
State  of  destination  or  delivered  to  a  common  carrier 
for  that  purpose.  The  carrying  them  to  and  deposit- 
ing them  at  a  depot  for  transportation  is  not  a  part  of 
.that  transportation.  So  held  as  to  logs  hauled  from 
-the  place  of  cutting  to  the  town  of  E.  in  'New  Hamp- 
shire, there  to  be  transported  upon  the  river  to  Lewis- 
4on,  Maine.     Coe  v.  Errol,  116  U.  S.,  517. 

On  the  day  to  which  a  State  assessment  relates,  the 
property  was  in  products,  on  shipboard  in  the  course 
of  transportation,  and  could  not  be  taxed.  If  on  that 
day  it  was  in  money,  the  subsequent  assessment  of  it 
could  not  be  set  aside,  on  the  ground  that  when  assess- 
ment was  made  it  was  employed  in  purchase  of  prod- 
ucts for  exportation.  People  v.  Comm'rs,  104  U.  S., 
466. 

l^OTE. — Many  taxes  and  impositions  by  States  fall 
Tinder  the  head  of  interference  with  interstate  com- 
merce, or  foreign  commerce,  and  the  cases  are  collected 
under  that  head. 


Sec.   10.]  PROHIBITIONS  ON  STATES.  201 

PROHIBITIONS   ON   THE    STATES. 

"No  State  shall,  without  the  consent  of  Congress,  lay 
any  duty  of  tonnage,  keep  troops  or  ships  of  war  in  time 
of  peace,  enter  into  any  agreement  or  compact  with  an- 
other State,  or  with  a  foreign  power,  or  engage  in  war, 
unless  actually  invaded,  or  in  such  imminent  danger  as 
will  not  admit  of  delay." 

What  is  a  tonnage  tax? — Although  a  tax  levied,  as 
on  property,  by  a  State  upon  vessels  owned  by  its  citi- 
zens and  based  on  a  valuation  of  the  same  are  not  pro- 
hibited by  the  Federal  Constitution;  yet  State  taxes 
can  not  be  imposed  on  them  by  any  State  at  so  much 
per  ton  of  the  registered  tonnage,  and  are  unconstitu- 
tional even  though  the  vessels  are  owned  within  the 
State  and  engaged  exclusively  in  trade  within  the 
State.     State  Tonnage  Cases,  12  Wall.,  204. 

So  much  of  the  act  of  the  legislature  of  l^ew  York, 
passed  May  22,  1862,  as  amended  April  17,  1865,  as 
required  ships  and  vessels  which  enter  the  port  of  New 
York,  or  load  or  unload  or  make  fast  to  any  wharf 
therein,  to  pay  a  certain  percentage  per  ton,  on  the  ton- 
nage as  registered,  is  a  tax  on  tonnage  and  void.  In- 
man  Steamship  Company  v.  Tinker,  94  U.  S.,  238. 
Tonnage  is  a  vessel's  internal  cubical  capacity. 

The  States  can  not  levy  a  duty  of  tonnage  on  ships 
or  vessels,  even  though  they  are  engaged  only  in  State 


202  CONSTITUTION  OF  UNITED  STATES.         [Art.  I, 

commerce,  not  internal  or  foreign.     Cox  v.  The  Col* 
lector  (State  Tonnage  Cases),  12  Wall.,  204. 

An  ordinance  of  'New  Orleans  wliicli  requires  of  all 
steamboats,  which  shall  moor  or  land  in  any  part  of 
the  port  of  iN'ew  Orleans,  a  sum  measured  by  the  ton- 
nage of  the  vessel,  is  a  tonnage  tax  and  void.  Cannon 
V.  New  Orleans,  20  Wall.,  577.  This  was  done  under 
pretence  of  compensation  for  wharfage;  but  for  the 
use  of  wharves  owned  by  a  city  a  reasonable  compen- 
sation may  be  charged  and  received.     Id. 

A  State  can  not,  in  order  to  defray  the  expenses  of 
her  quarantine  regulations,  impose  a  tonnage  tax  on  ves- 
sels owned  in  foreign  ports  and  entering  her  harbors 
in  pursuit  of  commerce.  Peete  v.  Morgan,  19  Wall., 
681. 

What  is  not  a  tonnage  tax? — A  license  of  $100  per 
boat  required  of  the  owner  of  a  ferry  boat  plying 
across  a  river  between  two  States  is  not  "tonnage  tax," 
and  may  be  imposed.  Wiggins  Ferry  Co.  v.  East  St. 
Louis,  107  U.  S.,  365. 

The  duty  of  tonnage  prohibited  by  the  Constitution 
is  a  charge  upon  a  vessel  according  to  its  tonnage  as 
the  instrument  of  commerce,  for  the  privilege  of  enter- 
ing or  leaving  a  port  or  navigating  public  waters. 
Huse  V.  Glover,  119  U.  S.,  543. 

Reasonable  compensation  for  the  use  of  artificial 
facilities  for  the  improvement  of  navigation  is  not  a 
tonnage  tax.     Id. 


Sec.  10.]  PROHIBITIONS  ON  STATES.  203 

Wharfage  is  not  tonnage,  and  can  be  charged  by 
State  autboritj.  Transportation  Company  v.  Parkers- 
burg,  107  U.  S.,  691.  But  it  must  be  imposed  in  good 
faith,  and  to  the  extent  of  a  fair  remuneration.  Packet 
Co.  V.  St.  Louis,  100  U.  S.,  423.  It  may  be  graduated 
by  the  size  of  the  vessel.  Id.  Whether  the  charge  is 
wharfage  or  tonnage  is  a  question  of  law  and  fact. 
The  intent  is  immaterial.  Trans.  Co.  v.  Parkersburg, 
107  U.  S.,  691. 

The  Vicksburg  wharfage  regulations  were  not  a 
duty  on  tonnage,  nor  interference  with  interstate  com- 
merce.    Vicksburg  v.  Tobin,  100  U.  S.,  430. 

Taxes  levied  upon  ships,  by  a  State,  although  en- 
rolled, owned  by  citizens  of  the  State,  based  on  a  valua- 
tion of  the  vessel  as  property,  are  not  within  the  Con- 
stitutional prohibition  against  levying  duties  of  ton- 
nage.    Transportation  Co.  v.  Wheeling,  99  U.  S.,  273. 

But  wharfage  may  be  charged  in  proportion  to  ton- 
nage.    See,  ante  J  p.  71.    ' 

Compact  or  agreement  with  other  States. — It  is  not 
necessary  that  the  consent  of  Congress  be  expressed  in 
any  particular  form ;  and  when  Congress  consented  to 
the  separation  of  Kentucky  and  its  admission  as  a 
State  into  the  Union,  it  amounted  to  consent  to  a  com- 
pact previously  made  between  them,  and  gave  it  the 
force  of  a  contract,  within  the  18  th  section  of  the  first 
Article  of  the  Constitution.  Green  v.  Biddle,  8 
Wheat.,  1. 


204  coisrsTiTUTioN  of  uis^ited  states.       [Art.  I, 

The  consent  of  Congress  to  an  agreement  or  compact 
"between  two  States  may  be  implied  from  circum- 
stances, such  as  arranging  the  judicial  districts  on  the 
basis  of  a  boundary  settled  by  the  States,  or  the  form- 
ing of  a  congressional  district  on  the  same  basis.  Vir- 
ginia V.  Tennessee,  148  U.  S.,  504. 

"Controversies  between  (States),  arising  out  of  pub- 
lic relations  and  intercourse,  can  not  be  settled  either 
by  war  or  diplomacy,  though  with  the  consent  of  Con- 
gress they  may  be  composed  by  agreement.  As 
pointed  out  by  Mr.  Justice  Field  in  Virginia  v.  Ten- 
nessee, 148  U.  S.,  503,  519,  there  are  many  matters  on 
which  the  different  States  may  agree  that  can  in  no 
respect  concern  the  United  States,  while  there  are 
other  compacts  or  agreements  to  which  the  Constitu- 
tion applies.  And  as  to  this,  he  quotes  from  Mr.  Jus- 
tice Story  in  his  ^commentaries.  Sec.  1408  *  *  * 
^that  its  language  may  be  more  plausibly  interpreted 
from  the  terms  used  (in  the  previous  part  of  the  same 
section)  "treaty  alliance  or  confederation,"  and  upon 
the  ground  that  the  sense  of  each  is  best  known  by  its 
association  (noscitur  a  sociis)  to  apply  to  treaties  of  a 
political  character;  such  as  treaties  of  alliance,  and 
treaties  of  confederation,  in  which  the  parties  are 
leagued  for  mutual  government,  political  co-operation, 
and  the  exercise  of  political  sovereignty,  and  treaties 
of  cession  and  sovereignty,  or  conferring  internal  politi- 
cal jurisdiction,  or  external  political  dependence,   or 


I 


Sec.   10.]  PROHIBITIONS  OlS  STATES.  205 

general  commercial  privileges,  and  tliat  the  latter 
clause,  "compacts  and  agreements"  might  then  very 
properly  apply  to  such  as  might  be  deemed  mere  priv- 
ate rights  of  sovereignty;  such  as  questions  of  bound- 
ary; interests  in  land  situate  in  the  territory  of  each 
other,  and  other  internal  regulations  for  the  mutual 
comfort  and  convenience  of  States  bordering  on  each 
other.'  And  he  adds:  ^In  such  cases  the  consent  of 
Congress  may  be  properly  required,  in  order  to  check 
any  infringement  of  the  rights  of  the  !N^ational  govern- 
ment ;  and,  at  the  same  time,  a  total  prohibition  to  en- 
ter into  any  compact  and  agreement  might  be  attended 
with  permanent  inconvenience  or  public  mischief.'  " 
Louisiana  v.  Texas,  176  U.  S.,  1,  17. 

An  agreement  made  between  two  States,  made  with- 
out consent  of  Congress,  to  appoint  commissioners  to 
run  and  mark  the  boundaries,  is  not  within  the  inhibi- 
tion of  the  above  section.  Virginia  v.  Tennessee,  148 
U.  S.,  503.  The  consent  of  Congress  may  be  implied 
from  its  subsequent  action  in  assigning  districts  for 
judicial,  election  and  revenue  appointments  on  the 
basis  of  the  boundaries  agreed  upon  by  the  States.     Id. 

The  compact  of  1785  between  Virginia  and  Mary- 
land, settling  the  jurisdiction  of  each  over  Chesapeake 
bay  and  the  Potomac  and  Pocomoke  rivers,  was  not 
affected  by  the  constitutional  provision  against  compacts 
between  States.  That  operates  only  on  compacts  made 
after,  not  before,  the  adoption  of  the  Constitution.. 
Wharton  v.  Wise,  153  U.  S.,  165. 


206 


CONSTITUTION  OF  UNITED  STATES.      [Art.  II, 


AKTICLE  11. 

THE   EXECUTIVE   POWEE. 

Section  1.  "The  executive  power  shall  be  vested  in 
a  President  of  the  United  States  of  America.  He  shall 
hold  his  office  during  the  term  of  four  years,  and,  to- 
gether with  the  Vice-President,  chosen  for  the  same  term, 
he  elected  as  follows : — " 

presidential  electors. 

"Each  State  shall  appoint,  in  such  manner  as  the  legis- 
lature thereof  may  direct,  a  number  of  Electors  equal  to 
the  whole  number  of  Senators  and  Representatives  to 
which  the  State  may  be  entitled  in  the  Congress;  but  no 
Senator  or  Representative,  or  person  holding  an  office  of 
trust  or  profit  under  the  United  States,  shall  be  appointed 
an  Elector." 

Power  of  State  legislature  to  provide  for  manner  of 
choosing  presidential  electors. — The  several  State  legis- 
latures have  exclusive  power  to  direct  the  manner  in 
which  the  electors  of  President  and  Vice-President 
shall  be  appointed.  The  appointment  may  be  by  the 
legislatures  directly,  or  by  popular  vote  in  districts,  or 
by  general  ticket,  as  the  legislature  may  provide.  Mc- 
Pherson  v.  Blacker,  146  U.  S.,  1. 

The  appointment  of  electors,  and  the  mode  thereof, 


Sec.  1.]  ELECTION  OF  PRESIDENT.  207 

belong  exclusively  to  the  States,  under  the  Constitu- 
tion.    In  re  Green,  134  IT.  S.,  377,  379. 

A  State  law  fixing  a  different  time  for  the  meeting 
of  electors  is  to  that  extent  invalid,  but  not  necessarily; 
as  to  other  provisions  of  the  act.  The  date  may  be  re- 
jected and  the  other  parts  of  the  law  stand.  McPher- 
son  V.  Blacker,  146  U.  S.,  1. 

The  14th  and  15th  Airiendments  do  not  amend  Art- 
icle II  of  the  Constitution,  and  do  not  limit  the  power 
of  appointment  to  the  particular  manner  of  appoint- 
ment of  presidential  electors  pursued  at  the  time  of 
the  adoption  of  the  amendments.     Id. 

(Here  is  omitted  that  part  of  Section  1,  Article  II, 
which  was  amended  by  Article  XJI  of  the  Amend- 
ments, which  is  as  follows:) 

''The  Electors  shall  meet  in  their  respective  States,  and 
vote  by  ballot  for  President  and  Vice-President,  one  of 
whom,  at  least,  shall  not  be  an  inhabitant  of  the  same 
State  with  themselves;  they  shall  name  in  their  ballots 
the  person  voted  for  as  President,  and  in  distinct  ballots 
the  person  voted  for  as  Vice-President;  and  they  shall 
make  distinct  lists  of  all  persons  voted  for  as  President, 
and  of  all  persons  voted  for  as  Vice-President,  and  of  the 
number  of  votes  for  each,  which  lists  they  shall  sign  and 
certify,  and  transmit  sealed  to  the  seat  of  the  government 
of  the  United  States,  directed  to  the  President  of  the 
Senate; — The  President  of  the  Senate  shall,  in  presence 


208  COII^STITUTIOIf  OF  UNITED  STATES.       [Art.  11^ 

of  the  Senate  and  House  of  Kepresentatives,  open  all  the 
certificates,  and  the  votes  shall  then  be  counted; — The 
person  having  the  greatest  number  of  votes  for  President 
Bhall  be  the  President,  if  such  number  be  a  majority  of  the 
whole  number  of  Electors  appointed;  and  if  no  person 
have  such  majority,  then  from  the  persons  having  the 
highest  number  not  exceeding  three  on  the  list  of  those 
voted  for  as  President,  the  House  of  Representatives, 
shall  choose  immediately,  by  ballot,  the  President.  But  in 
choosing  the  President,  the  votes  shall  be  taken  by  States, 
the  representation  from  each  State  having  one  vote ;  a  quo- 
rum for  this  purpose  shall  consist  of  a  member  or  members 
from  two-thirds  of  the  States,  and  a  majority  of  all 
the  States  shall  be  necessary  to  a  choice.  And  if  the 
House  of  Representatives  shall  not  choose  a  President, 
whenever  the  right  of  choice  shall  devolve  upon  them, 
before  the  fourth  day  of  March  next  following,  then  the 
Vice-President  shall  act  as  President,  as  in  the  case  of  the 
death  or  other  constitutional  disability  of  the  President* 
The  person  having  the  greatest  number  of  votes  as  Vice- 
President  shall  be  the  Vice-President,  if  such  number  be  a 
majority  of  the  whole  number  of  Electors  appointed,  and 
if  no  person  have  a  majority,  then  from  the  two  highest 
numbers  on  the  list  the  Senate  shall  choose  the  Vice- 
President;  a  quorum  for  the  purpose  shall  consist  of  two- 
thirds  of  the  whole  number  of  Senators,  and  a  majority 
of  the  whole  number  shall  be  necessary  to  a  choice.    But 


Sec.  1.]  EXECUTIVE  POWER.  209 

no  person  constitutionally  ineligible  to  tlie  office  of 
President  shall  be  eligible  to  that  of  Vice-President  of 
the  United  States. 

"The  Congress  may  determine  the  time  of  choosing  the 
Electors,  and  the  day  on  which  they  shall  give  their 
votes;  which  day  shall  be  the  same  throughout  the  United 
States." 

The  Executive  Power  is  vested  in  the  President,  and 
as  far  as  his  powers  are  derived  from  the  Constitution^ 
he  is  beyond  the  reach  of  any  other  department,  except 
through  the  impeaching  power.  But  this  is  not  true 
of  other  executive  officers.  Kendall  v.  United  States, 
12  Peters,  624. ,  The  obligation  imposed  on  him  to  see 
the  laws  executed  does  not  imply  a  power  to  forbid 
their  execution.     Id. 

The  President  can  not  authorize  a  Secretary  of  State 
to  omit  the  performance  of  duties  which  are  enjoined 
by  law.  Marbury  v.  Madison,  1  Cranch,  137.  It 
was  held  in  this  case  that  the  Supreme  Court  could  not, 
in  the  exercise  of  original  jurisdiction,  compel  by  man- 
damus the  Secretary  of  State  to  issue  a  commission  to 
an  appointee. 

Where  rival  State  governments  in  a  State  each  claim 

to  be  lawful,  the  President  must  determine  as  between 

them  which  is  the  legislature  and  Governor  lawfully 

entitled  to  recognition  and  which  is  in  insurrection. 

Luther  v.  Borden,  7  How.,  1.     When  he  has  decided 
14 


210  COIS^STITUTION^   OF  U^'ITED   STATES.      [Art.  II, 

the  Courts  of  the  United  States  are  bound  to  follow  his 
decision.     Id. 

The  act  of  a  head  of  a  department  in  calling  the  at- 
tention of  any  person  having  business  with  such  de- 
partment, to  a  statute  relating  in  any  way  to  such  busi- 
ness, can  not  be  made  the  foundation  of  a  cause  of  ac- 
tion against  such  officer.  Spalding  v.  Yilas,  161  XJ.  S., 
483. 

The  President  has  the  power  to  protect  a  judge  of  a 
court  of  the  United  States,  who,  while  in  the  discharge 
of  the  duties  of  his  office,  is  threatened  with  per- 
sonal violence  or  death.     In  re  Nagle,  135  U.  S.,  1. 

When  iN'ew  Mexico  was  gained  to  the  United  States 
by  conquest  and  treaty,  the  executive  authority  of  the 
United  States  properly  established  a  provisional  gov- 
ernment, which  ordained  laws  and  instituted  judicial 
tsystems ;  all  of  which  continued  in  force  after  the  close 
of  the  war,  and  until  modified  by  the  direct  legislation 
of  Congress,  or  by  the  territorial  government  estab- 
lished by  its  authority.  Leitensdorfer  v.  Webb,  20 
How.,  176. 

When  during  the  late  civil  war  portions  of  the  in- 
surgent territory  were  occupied  by  the  ITational  forces, 
it  was  within  the  constitutional  authority  of  the  Presi- 
dent to  establish  'provisional  courts,  defining  their 
powers,  etc.,  by  proclamation.  The  Grapeshot,  9  Wall., 
129;  see  Cross  v.  Harrison,  16  How.,  193;  Mechanics' 


Sec.   1.]  WHO  MAY  BE  PEESIDENT.  211 

and  Trader's  Bank  v.  Union  Bank,  22  Wall.,  276 ;  N'ew 
Orleans  v.  The  Steamship,  20  Wall.,  387. 


ELIGIBILITY  TO  THE  OFFICE. 

"No  person  except  a  natural-born  citizen,  or  a  citizen 
of  the  United  States  at  the  time  of  the  adoption  of  this 
Constitution,  shall  be  eligible  to  the  office  of  President; 
neither  shall  any  person  be  eligible  to  that  office  who 
shall  not  have  attained  to  the  age  of  thirty-five  years, 
and  been  fourteen  years  a  resident  within  the  United 
States." 

Persons  born  in  the  colonies  before  the  Declaration 
of  Independence,  had  a  right  to  elect  whether  thej 
would  retain  their  native  allegiance  to  the  British 
Crown,  or  would  become  citizens  of  the  several  States. 
The  right  of  election  has  reference  to  that  date,  but  it 
is  not  necessary  that  the  election  should  be  manifested 
by  any  act  prior  to  or  at  the  very  time  of  the  Declaration 
of  Independence,  and  prima  facie,  if  born  before  July 
4,  1776,  and  remaining  here  after  that  day  the  person 
is  to  be  deemed  a  citizen  but  this  presumption  may  be 
rebutted  by  acts  showing  an  adhesion  to  the  British 
Crown  during  the  struggle.  Inglis  v.  Trustees  Sail- 
or^s  Snug  Harbor,  3  Pet,  99.  A  person  born  in  Eng- 
land before  the  Declaration  of  Independence  and  al- 
ways residing  there  is  an  alien.  Dawson  v.  Godfrey, 
4  Cranch,  321. 


212  CONSTITUTION  OF  UNITED  STATES.       [Art.  II, 

DEVOLUTION  OF  OFFICE. 

"In  case  of  the  removal  of  the  President  from  office,  or 
of  his  death,  resignation,  or  inability  to  discharge  the 
powers  and  duties  of  the  said  office,  the  same  shall  devolve 
on  the  Vice-President,  and  the  Congress  may  by  law  provide 
for  the  case  of  removal,  death,  resignation,  or  inability, 
both  of  the  President  and  Vice-President,  declaring  what 
officer  shall  then  act  as  President,  and  snch  officer  shall 
act  accordingly,  until  the  disability  be  removed,  or  a 
President  shall  be  elected." 

COMPENSATION. 

"The  President  shall,  at  stated  times,  receive  for  his 
services  a  compensation,  which  shall  neither  be  in- 
creased nor  diminished  during  the  period  for  which  he 
shall  have  been  elected,  and  he  shall  not  receive  within 
that  period  any  other  emolument  from  the  United  States, 
or  any  of  them." 

OATH   OF   OFFICE. 

"Before  he  enter  on  the  execution  of  his  office,  he  shall 
take  the  following  oath  or  affirmation: — *I  do  solemnly 
swear  (or  affirm)  that  I  will  faithfully  execute  the  office 
of  President  of  the  United  States,  and  will,  to  the  best 
of  my  ability,  preserve,  protect,  and  defend  the  Constitu- 
tion of  the  United  States.'  " 


Sec.  2.]      1  EXECUTIVE   POWER.  213 

POWERS    OF   THE    PRESIDENT,  \  ^ 

Section  2.  "The  President  shall  be  commander-in- 
chief  of  the  army  and  navy  of  the  United  States,  and  of 
the  militia  of  the  several  States,  when  called  into  the 
actual  service  of  the  United  States;  he  may  require  the 
opinion,  in  writing,  of  the  principal  officer  in  each  of  the 
executive  departments,  upon  any  subject  relating  to  the 
duties  of  their  respective  offices,  and  he  shall  have  power 
to  grant  reprieves  and  pardons  for  offenses  against  the 
United  States,  except  in  cases  of  impeachment." 

Powers  as  commander-in-chief, — The  President,  as 
the  executive  chief  of  the  government  and  commander- 
in-chief  of  the  armj  and  navy,  has  a  right  to  institute 
a  blockade  of  ports  in  possession  of  persons  in  armed 
rebellion.     Prize  Cases,  2  Black,   635. 

The  President  has  power  to  make  and  repeal  rules 
and  regulations  for  the  government  of  the  army,  in 
respect  to  compensation  for  extra  services,  Congress 
not  having  legislated  thereon,  and  the  Secretary  of  War 
is  the  regular  organ  of  the  President  for  publicly  pro- 
mulgating such  rules  and  regulations.  United  States 
V.  Eliason,  16  Pet,  291. 

The  President  has  power  to  supersede  or  remove  an 
officer  in  the  army  by  appointing  another  in  his  place 
by  and  with  consent  of  the  Senate  (Keyes  v.  United 


214  CONSTITUTION   OF   UNITED   STATES.      [Art.  II, 

States,  109  U.  S.,  336;  Blake  v.  United  States,  103 
U.  S.,  227),  and  this  notwithstanding  the  act  of  Con- 
gress of  July  13,  1866,  Sec.  5,  which  provides  that  no 
officer  shall  be  dismissed  from  the  army  or  navy  in 
time  of  peace  except  upon  and  in  pursuance  of  the  sen- 
tence of  a  court  martial  to  that  effect  or  in  commuta- 
tion thereof.  Mullan  v.  United  States,  140  U.  S., 
240. 

The  Constitution  do^s  not  prohibit  the  creation  by 
military  authority  of  courts  for  the  trial  of  civil  causes 
during  civil  war  in  conquered  portions  of  the  insur- 
gent States.  And  where  so  established  by  a  command- 
ing general  it  will  be  presumed  in  the  absence  of  proof 
to  the  contrary,  that  the  President  authorized  it. 
Mech.  and  Traders'  Bk.  v.  Union  Bk.,  22  Wall.,  276. 

The  President,  as  commander-in-chief  and  vested 
with  charge  of  hostile  operations,  may  permit  limited 
commercial  intercourse  with  an  enemy  in  time  of  war, 
especially  so,  when  he  has  the  concurrent  authority  of 
an  act  of  Congress,  viz.:  Act  of  July  13,  1861  (12 
Stat,  at  L.,  p.  257) ;  Hamilton  v.  Dillin,  21  Wall.,  73. 

The  proclamation  of  the  President  takes  effect  as  of 
the  beginning  of  the  day  of  its  date.  So  held  of  a 
proclamation  annulling  all  restrictions  to  trade  with 
States  lately  in  rebellion  in  the  territory  east  of  the 
Mississippi,  imposed  under  the  Act  of  June  13,  1865 
(13  Stats.,  763).  United  States  v.  mrton,  97  U.  S., 
164. 


Sec.  2.]  PARDONING  POWER.  215 

TJie  'pardoning  power  of  the  President. — In  order 
to  ascertain  what  is  meant  by  the  power  to  grant  re- 
prieves and  pardons  resort  must  be  had  to  the  meaning 
of  these  words  and  the  power  as  used  in  England  un- 
der the  common  law.  From  these  sources  it  appears 
that  the  power  includes  the  right  to  commute  the  sen- 
tence of  the  court  by  substituting  a  milder  punishment 
as  imprisonment  in  place  of  sentence  of  death;  and 
acceptance  of  such  pardon  binds  the  convict  to  the  sub- 
stituted punishment.     Ex  parte  Wells,  18  How.,  307. 

Pardon  of  the  President  under  Act  of  July  17,  1862 
(13  Stat,  at  L.,  592)  by  proclamation  operates  to 
grant  oblivion,  and  removes  all  consequences  of  giving 
aid  and  comfort  to  those  in  rebellion  (United  States  v. 
Padelford,  9  Wall.,  531)  and  entitles  the  persons 
pardoned  to  a  restoration  of  all  rights  of  property,  ex- 
cept slaves,  on  condition  of  their  taking  and  keeping  in- 
violate the  oath  prescribed.  United  States  v.  Klein, 
13  Wall.,  128.  See  Wallach  v.  Van  Kiswick,  92  U.  S., 
202. 

The  President's  proclamation  of  pardon  and  am- 
nesty unconditionally  and  without  reservation  to  all 
who  participated,  directly  or  indirectly,  in  the  late  re- 
bellion relieves  claimants  of  captured  and  abandoned 
property  from  proof  of  adhesion  to  the  United  States, 
during  the^ate  civil  war.  Pargoud  v.  United  States,  13 
Wall.,   156. 

A  pardon  is  an  act  of  grace,  proceeding  from  tha 


216  CON^STITUTION  OF  UNITED  STATES.      [Art.  II, 

power  intrusted  with  the  execution  of  the  laws,  which 
exempts  the  individual  on  whom  it  is  bestowed  from 
the  punishment  the  law  inflicts  for  a  crime  he  has  com- 
mitted. It  is  the  private  though  official  act  of  the  ex- 
ecutive magistrate,  delivered  to  the  individual  for 
whose  benefit  it  is  intended  and  not  communicated  of- 
ficially to  the  court.  It  must  be  brought  to  the  notice 
of  the  court  by  plea  or  motion.  United  States  v.  Wil- 
son, 7  Pet.,  150. 

A  pardon  by  the  President  for  all  offenses  arising 
from  participation  in  the  rebellion,  relieves  the  re- 
cipient from  the  necessity  of  taking  the  oath  required 
by  the  Act  of  January  24,  1865.  Ex  'parte  Garland,  4 
Wall.,  333.  Such  pardon  blots  out  the  offense  (Arm- 
strong V.  United  States,  13  Wall.,  154;  United  States 
V.  Padelford,  9  Wall.,  531;  Knox  v.  United  States,  95 
U.  S.,  149)  and  restores  to  the  recipient  all  rights  of 
property  lost  by  the  offense,  unless  it  has  by  judicial 
process  become  vested  in  other  persons.  Osborn  v. 
United  States,  91  U.  S.,  474;  Carlisle  v.  United  States, 
16  Wall.,  147.  As  to  them,  it  can  not  affect  rights 
vested  in  others  directly  by  the  execution  of  the  judg- 
ment for  the  offense,  or  acquired  by  others  while  it  was 
in  force.  Knote  v.  United  States,  95  U.  S.,  149.  The 
Confiscation  Cases,  20  Wall.,  92;  Semmes  v.  United 
States,  91  U.  S.,  21. 

The  general  pardon  of  the  owner  relieves  him  of  so 
much  of  the  penalty  as  accrued  to  the  United  States 


Sec.  2.]  EXECUTIVE   POWER.  217 

under  the  Confiscation  Act  of  August  3d,  1861.  Arm- 
strong's Foundry,  6  Wall.,  766. 

The  proviso  in  the  general  appropriation  Act  of 
1870,  which  assumes  to  annul  the  effect  of  the  Presi- 
dent's pardon,  in  claims  pending  before  the  Court  of 
Claims,  can  have  no  such  annulling  effect.  United 
States  V.  Klein,  13  Wall.,  128. 

But  where  the  statute  prohibits  payment  of  claims 
to  persons  not  known  to  be  loyal  during  the  war,  a 
pardon  does  not  authorize  the  payment  of  such  claims. 
Hart  V.  United  States,  118  U.  S.,  62. 

One  convicted  by  a  consular  court  having  jurisdic- 
tion, and  sentenced  to  death  for  murder,  but  accepting 
a  pardon  granted  on  condition  that  he  be  imprisoned 
for  life  in  a  penitentiary  is  bound  by  the  condition. 
In  re  Eoss,  140  U.  S.,  453. 

The  recital  in  a  pardon  that  it  is  granted  at  the  re- 
quest of  the  district  attorney,  in  order  to  restore  the 
competency  of  the  pardoned  person  as  a  witness  in  a 
murder  trial,  does  not  alter  the  fact  that  the  pardon 
is  full  and  unconditional.  Boyd  v.  United  States,  142 
U.  S.,  450. 

TEEATY-MAKIiS^G     POWER DIPLOMATIC     APPOINTMENTS. 

"He  shall  have  power,  by  and  with  the  advice  and  con- 
sent of  the  Senate,  to  make  treaties,  provided  two-thirdi 
of  the  Senators  present  concur;  and  he  shall  nominate, 
and,  by  and  with  the  advice  and  consent  of  the  Senate, 


218  COI^STITUTIO]^   OF   UNITED   STATES.      [Art.  II,. 

shall  appoint  ambassadors,  other  public  ministers,  and 
consuls,  judges  of  the  Supreme  Court,  and  all  other  offi- 
cers of  the  United  States,  whose  appointments  are  not 
herein  otherwise  provided  for,  and  which  shall  be  estab- 
lished by  law;  but  the  Congress  may  by  law  vest  the  ap- 
pointment of  such  inferior  officers,  as  they  think  proper, 
in  the  President  alone,  in  the  courts  of  law,  or  in  the 
heads  of  departments." 

Treaties. — Though  a  treaty  is  the  law  of  the  land^ 
and  its  provisions  must  be  regarded  by  courts  as  equiv- 
alent to  an  act  of  the  Congress  when  it  operates  directly 
on  a  subject,  yet  if  it  be  merely  a  stipulation  for 
future  legislation  by  Congress,  it  addresses  itself  to  the 
political  power,  and  the  judicial  department  must 
await  congressional  action.  Foster  v.  ISTeilson,  2  Pet.^ 
253.     See,  post,  pp.  283-4. 

The  statute  of  the  State  of  Georgia,  which  subjected 
to  punishment  all  white  people  residing  within  the 
limits  of  the  Cherokee  nation,  and  authorized  their  ar- 
rest and  forcible  removal  therefrom,  was  held  repug- 
nant to  the  laws  and  treaties  of  the  United  States. 
Worcester  v.  State  of  Georgia,  6  Pet.,  515. 

The  treaty  of  peace  between  the  United  States  and 
Great  Britain,  concluded  on  the  3rd  of  September, 
1783  (8  Stat,  at  L.,  p.  80)  enables  British  creditors  to 
recover  debts,  previously  contracted  to  them  by  our 
citizens,  notwithstanding  a  payment  into  a  State  treas- 


Sec.  2.]  EXECUTIVE   POWER.  219 

ury  had  been  made  during  the  war,  under  the  author- 
ity of  a  State  law  of  sequestration.  Ware  v.  Hylton, 
3  DalL,  199. 

The  treaty  with  the  Cherokee  Indians,  made  Dec. 
29,  1835,  was  made  under  the  treaty-making  power 
vested  by  the  Constitution  in  the  President  and  Sen- 
ate.    Holden  v.  Joy,  17  Wall.,  211. 

Vice-Consuls. — Sees.  1695,  1703,  Eev.  St.,  empow- 
ering the  President  to  provide  for  the  appointment  of 
vice-consuls,  are  valid,  though  not  requiring  the  ad- 
vice and  consent  of  the  Senate.  They  fall  under  the 
class  of  those  inferior  officers,  whose  appointment  Con- 
gress may  vest  in  the  President  alone.  United  States 
V.  Eaton,  169  U.  S.,  331. 

The  power  of  appointment. — The  appointment  and 
commission  of  a  collector  of  internal  taxes  "until  the 
end  of  the  next  session  of  Congress  and  no  longer,"  is 
not  continued  by  a  new  appointment  and  commission 
during  the  pleasure  of  the  President.  The  latter  is  a. 
new  appointment  distinct  from  the  first  and  requires  a 
new  bond.  United  States  v.  Kirkpatrick,  9  Wheat., 
720. 

POWER  TO  FILL  VACANCIES. 

"The  President  shall  have  power  to  fill  up  all  vacancies 
that  may  happen  during  the  recess  of  the  Senate,  by 
granting  commissions  which  shall  expire  at  the  end  of 
their  next  session." 


220  COIN^STITUTION  OF  UIS^ITED  STATES.     [Art.  Ill, 

Appointments. — ^Where  tlie  President  makes  an  ap- 
pointment to  hold  till  the  end  of  the  next  session,  and 
then  after  the  session,  appoints  the  same  officer  to  hold 
during  pleasure,  it  is  a  new  appointment  requiring  a 
new  bond,  and  the  sureties  on  the  first  bond  are  not  lia- 
ble for  acts  done  under  the  second  commission.  United 
States  V.  Kirkpatrick,  9  Wheat,  720. 

DUTIES   AND   POWEES   AS   TO   CONGRESS. 

Section  3.  "He  shall  from  time  to  time  give  to  the 
€ongress  information  of  the  state  of  the  Union,  and  rec- 
ommend to  their  consideration  such  measures  as  he  shall 
judge  necessary  and  expedient;  he  may,  on  extraordinary 
occasions,  convene  both  Houses,  or  either  of  them,  and  in 
case  of  disagreement  between  them,  with  respect  to  the 
time  of  adjournment,  he  may  adjourn  them  to  such  time 
as  he  shall  think  proper;  he  shall  receive  ambassadors 
and  other  public  ministers;  he  shall  take  care  that  the 
laws  be  faithfully  executed,  and  shall  commission  all 
the  officers  of  the  United  States." 

''Shall  commission  all  the  officers  of  the  United 
States/' — ^When  a  commission  has  been  signed  the  ap- 
pointment is  made;  and  the  commission  is  complete 
when  the  seal  of  the  United  States  has  been  affixed  to 
it  by  the  Secretary  of  State.  Where  the  officer  is  re- 
movable at  the  will  of  the  President,  the  circumstance 
which  completes  his  appointment  is  of  no  concern,  be- 


Sec.  1.]  JUDICIAL  POWER.  221 

cause  tlie  act  is  at  any  time  revocable.  But  where  the 
officer  is  not  removable  at  the  will  of  the  Executive,  the 
appointment  is  not  revocable  and  can  not  be  annulled. 
This  was  held,  but  as  the  Supreme  Court  had  no  orig- 
inal jurisdiction  to  compel  the  Secretary  of  State  to 
deliver  the  commission,  the  rule  to  show  cause  why 
mandamus  should  not  issue  was  discharged.  Marbury 
V.  Madison,  1  Cranch,  137. 

BEMOVAI.   ON   IMPEACHMENT. 

Section  4.  "The  President,  Vice-President,  and  all 
civil  officers  of  the  United  States,  shall  be  removed  from 
office  on  impeachment  for,  and  conviction  of,  treason^ 
bribery,  or  other  high  crimes  and  misdemeanors." 


AKTICLE  III. 

THE   JUDICIAL  POWEE. 

Section  1.  "The  judicial  power  of  the  United  States 
shall  be  vested  in  one  Supreme  Court,  and  in  such  inferior 
courts  as  the  Congress  may  from  time  to  time  ordain  and 
establish.  The  judges,  both  of  the  Supreme  and  inferior 
courts,  shall  hold  their  offices  during  good  behavior,  and 
shall,  at  stated  times,  receive  for  their  services  a  compen- 
sation, which  shall  not  be  diminished  during  their  contin- 
uance  in  office." 


222  coNSTiTUTioisr  or  united  states.   [Art.  Ill, 

EXTENT  OF  JUDICIAL  POWER. 

Section  2.  "The  judicial  power  shall  extend  to  all 
cases,  in  law  and  equity,  arising  under  the  Constitution, 
the  laws  of  the  United  States,  and  treaties  made,  or  which 
shall  be  made,  under  their  authority;  to  all  cases  affecting 
ambassadors,  other  public  ministers,  and  consuls;  to  all 
cases  of  admiralty  and  maritime  jurisdiction;  to  contro- 
versies to  which  the  United  States  shall  be  a  party;  to  con- 
troversies between  two  or  more  States,  between  a  State 
and  citizens  of  another  State,  between  citizens  of  different 
States,  between  citizens  of  the  same  State  claiming  lands 
under  grants  of  different  States,  and  between  a  State,  or 
the  citizens  thereof,  and  foreign  States,  citizens,  or  sub- 
jects." 

Changed  hy  amendment. — This  was  changed  by  the 
eleventh  Amendment,  which  reads :  "The  judicial  power 
of  the  United  States  shall  not  be  construed  to  extend  to 
any  suit  in  law  or  equity  commenced  or  prosecuted  against 
one  of  the  United  States  by  citizens  of  another  State  or 
citizens  or  subjects  of  a  foreign  State." 

"In  all  cases  affecting  ambassadors,  other  public  minis- 
ters, and  consuls,  and  those  in  which  a  State  shall  be 
party,  the  Supreme  Court  shall  have  original  jurisdiction. 
In  all  the  other  cases  before  mentioned  the  Supreme  Court 
shall  have  appellate  jurisdiction,  both  as  to  law  and  fact, 
with  such  exceptions,  and  under  such  regulations,  as  the 
Congress  shall  make."     See  'post,  p.  321. 


."Sec.  2.]  JUDICIAL  POWER.  223 

The  12th  section  of  the  Interstate  Commerce  Act,  au- 
thorizing the  Circuit  Court  of  the  United  States  to  use 
their  process  to  compel  attendance  of  witnesses  before 
the  Interstate  Commerce  Commission  does  not  conflict 
with  the  Federal  Constitution  by  imposing  on  such 
courts  duties  not  judicial  in  their  nature.  Interstate 
Commerce  Commission  v.  Brimson,  154  U.  S.,  447. 

TRIAL  OF  CRIMES  BY  JURY. 

"The  trial  of  all  crinies,  except  in  cases  of  impeachment, 
shall  be  by  jury;  and  such  trial  shall  be  held  in  the  State 
where  the  said  crimes  shall  have  been  committed;  but 
when  not  committed  within  any  State,  the  trial  shall  be  at 
such  place  or  places  as  the  Congress  may  by  law  have  di- 
xected." 

Jurisdiction  of  the  Supreme  Court. — The  Supreme 
Court  has  no  jurisdiction  of  purely  political  questions, 
of  those  not  involving  rights  of  persons  or  property,  such 
as  a  bill  to  abolish  an  existing  State  government,  or  to 
restrain  the  executive  or  the  Secretary  of  War  from  car- 
rying into  effect  acts  of  Congress  which  would  work  such 
abolition.  Georgia  v.  Stanton,  6  Wall.,  50.  'Not^  of  a 
bill  to  enjoin  the  President  in  the  execution  of  his  du- 
ties.    Mississippi  v.  Johnson,  4  Wall.,  475. 

Congress  may  prescribe  the  process  or  mode  of  pro- 
ceeding where  the  Supreme  Court  has  original  jurisdic- 
tion; but  the  jurisdiction  of  the  court  does  not  depend 


224  CONSTITUTION  OF  UNITED  STATES.     [Art.  Ill, 

on  sucli  Congressional  action ;  and  the  court  may,  if  oc- 
casion require,  make  its  own  rules.  Chisholm  v. 
Georgia,  2  DalL,  419 ;  Kentucky  v.  Dennison,  24  How., 
98 ;  N'ew  Jersey  v.  ISTew  York,  5  Pet.,  284. 

But  the  court  must  keep  within  the  limits  of  its  jur- 
isdiction ;  its  acts  beyond  are  void.  Khode  Island  v. 
Massachusetts,  12  Pet.,  657. 

Its  original  jurisdiction  embraces  actions  at  law  and 
suits  in  equity.     Wheeling  Bridge  Case,  13  How.,  518. 

Congress  can  not  enlarge  its  original  jurisdiction. 
Marbury  v.  Madison,  1  Cranch,  137;  ^ew  Jersey  v. 
I^ew  York,  5  Pet.,  284;  Kendall  v.  United  States,  12 
Pet,  637 ;  Cohens  v.  Virginia,  6  Wheat.,  264. 

States  can  not  restrict  Federal  jurisdistion.  An 
agreement  to  abstain  from  resorting  to  the  United  States 
courts  is  against  public  policy  and  a  statute  requiring 
such  agreement  void;  but  the  State  may  impose  as  a 
condition  to  do  business  in  the  State,  that  a  corpora- 
tion shall  not  remove  a  case  into  the  Federal  courts, 
and  may  revoke  its  license  where  such  removal  is  made. 
Doyle  V.  Ins.  Co.,  94  U.  S.,  535 ;  following  and  explain- 
ing, Ins.  Co.  V.  Morse,  20  Wall.,  44. 

State  law  requiring  a  corporation  to  stipulate  not  to 
remove  causes  is  void,  because  it  requires  the  surrender 
by  the  foreign  corporation  of  a  privilege  secured  by  the 
Constitution  and  laws  of  the  United  States.  Barron  v. 
Burnside,  121  U.  S.,  186. 


Sec.  2.]  JUDICIAL  POWEE.  225 

A  State  can  not  by  Constitution  or  statute  prohibit 
the  judges  of  the  Federal  courts  from  charging  juries 
with  regard  to  matters  of  fact.  St.  Louis,  etc.,  R'y  Co.  v. 
Vickers,  122  U.  S.,  360;  Vicksburg,  etc.,  K'y  Co.  v. 
Putnam,  118  U.  S.,  545 ;  ISTudd  v.  Burrows,  91  U.  S., 
426;  Ind.,  etc.,  E'y  Co.  v.  Horst,  93  U.  S.,  291. 
*  So  far  as  the  sovereignty  of  the  United  States  extends 
its  sovereignty  is  supreme.  'No  State  can  obstruct  its 
officers,  and  it  can  protect  them ;  and  such  protection  is 
not  dependent  on  State  courts  (Tennessee  v.  Davis,  100 
U.  S.,  257)  ;  and  original  causes  against  Federal  officers, 
for  acts  done  under  color  of  office,  can  be  removed  to  the 
Federal  courts.  R.  S.,  Sec.  643,  held  valid.  Tennes- 
see V.  Davis,  100  U.  S.,  257. 

Congress  may  give  the  Supreme  Court  appellate  jur- 
isdiction of  cases  where  it  has  original  jurisdiction. 
Gittings  V.  Crawford,  Taney,  9 ;  Bors  v.  Preston,  111 
U.  S.,  260. 

The  Supreme  Court  may  protect  itself  and  its  mem- 
bers from  disturbance  in  the  exercise  of  its  functions. 
Ex  parte  Bollman,  4  Cranch,  94.  The  President,  un- 
der his  general  obligation  to  see  that  the  laws  are  faith- 
fully executed,  is  in  duty  bound  to  protect  the  judges 
from  personal  violence  while  executing  their  duties.  In 
re  Neagle,  135  II.  S.,  1. 

Can  act  only  where  there  is  an  actual  controversy. — ' 

The  Supreme  Court  has  no  jurisdiction  to  declare  void  & 

Federal  State  statute,  except  when  a  case  is  brought  be* 
15 


226  CONSTITUTIOIS^  OF  UI^ITED  STATES.     [Art.  Ill, 

fore  it,  between  litigants  to  an  actual  controversy.  It 
never  anticipates  a  question  nor  lays  down  a  rule 
broader  than  the  case  before  it  requires.  Liverpool,  etc., 
Co.  V.  Comers  of  Emigration,  113  U.  S.,  33. 

The  original  jurisdiction  of  the  Supreme  Court. — 
The  original  jurisdiction  of  the  Supreme  Court  is  con- 
ferred by  Art.  Ill,  section  2,  clause  1,  which  declares 
the  cases  in  which  the  court  shall  have  original  jurisdic- 
tion. Cherokee  IN'ation  v.  State  of  Georgia,  5  Pet.,  1. 
This  second  clause  distributes  the  jurisdiction  conferred 
upon  the  Supreme  Court  in  the  previous  one  into  orig- 
inal and  appellate  jurisdiction,  but  does  not  profess  to 
confer  any.     Penn.  v.  Quicksilver  Co.,  10  Wall.,  553. 

''In  all  the  cases  affecting  ambassadors  or  other  public 
ministers/' — The  court  on  application  of  a  person  claim- 
ing to  be  a  public  minister  for  a  writ  of  prohibition  or 
mandamus,  to  restrain  a  district  court  from  the  exer- 
cise of  its  ordinary  jurisdiction,  will  require  the  cer- 
tificate of  the  State  that  he  is  such  minister,  and  accept 
the  same  as  conclusive  evidence  as  to  his  character.  A 
consul  general  of  a  country,  in  the  absence  of  the  regu- 
lar minister,  is  not  privileged  as  a  public  minister,  as 
respects  the  original  jurisdiction  of  the  Supreme  Court. 
In  re  Baiz,  135  U.  S.,  403.  The  immunity  of  foreign 
ministers,  as  representatives  of  their  sovereigns,  is  dis- 
cussed by  Chief  Justice  Marshall,  in  Schr.  Exchange  v. 
McFaddon,  7  Cranch,  116,  138. 


Sec.  2.]  JUDICIAL  POWER.  227 

Jurisdiction  of  the  Supreme  Court  in  cases  where 
State  is  a  party. — Under  the  Constitution,  as  originally 
adopted,  a  State  could  be  sued  by  an  individual  citizen 
of  another  State.  Chisholm  v.  Georgia,  2  DalL,  419. 
Service  of  process  on  the  Governor  and  Attorney  General 
of  the  State  was  sufficient  service  of  the  process,  and  the 
court  ordered  that  judgment  by  default  should  be  en- 
tered unless  the  State  appeared  or  showed  cause  by  the 
next  term.  Id. ;  Grayson  v.  Virginia,  3  DalL,  320.  In 
equity  like  service  of  subpoena  might  be  made,  to  be 
served  sixty  days  before  the  return  day  and  if  the  State 
did  not  appear  the  plaintiff  might  proceed  ex  parte. 
Grayson  V.  Virginia,  3  DalL,  320. 

^'It  is  a  part  of  our  history,  that,  at  the  adoption  of  the 
Constitution  all  the  States  were  greatly  indebted;  and 
the  apprehension  that  these  debts  might  be  prosecuted 
in  the  Federal  courts  formed  a  very  strong  objection  to 
that  instrument.  Suits  were  instituted  and  the  court 
maintained  its  jurisdiction.  The  alarm  was  general; 
and  to  quiet  the  apprehensions  that  were  so  extensively 
entertained,  this  amendment  was  proposed  in  Congress. 
*  *  *  The  amendment  extended  to  suits  com-^ 
menced  or  prosecuted  by  individuals  but  not  to  those 
brought  by  States."  Cohens  v.  Virginia,  6  Wheat.,  406. 
This  amendment  applies  only  to  original  suits  against 
the  States,  and  does  not  touch  the  appellate  jurisdiction 
of  the  Supreme  Court  to  re-examine  on  appeal  or  writ 
of  error  a  judgment  rendered  by  a  State  court.  Id.,  264. 


228  COXSTITUTIOX  OF  UI^ITED  STATES.     [Art.  Ill, 

In  cases  '%n  which  a  State  shall  he  a  party/' — To  give 
the  Supreme  Court  jurisdiction  on  the  ground  that  a 
State  is  a  party,  the  State  must  be  the  real  party  to  the 
record.  TJ.  S.  Bank  v.  Planters'  Bank,  9  Wheat,  906 ; 
Lincoln  Co.  v.  Luning,  133  U.  S.,  5^9.  It  is  not  enough 
that  the  State  be  consequentially  affected  (Fowler  v. 
Lindsey,  3  DalL,  411;  Wheeling  Bridge  Cases,  13 
jHow.,  559),  nor  where  a  State  sues  a  State  for  the  bene- 
fit of  a  citizen.  New  Hampshire  v.  Louisiana,  108 
U.  S.,  76 ;  New  York  v.  Louisiana,  id.,  91 ;  Louisiana  v. 
Texas,  176  U.  S.,  1,  16.  (See  post,  p.  321.)  Nor 
does  it  derive  jurisdiction  when  another  political  com- 
munity, such  as  an  Indian  tribe  (Cherokee  Nation  v. 
Georgia,  5  Pet.,  15),  or  the  District  of  Columbia  (Hep- 
burn V.  Ellzey,  2  Cranch,  445),  brings  the  action  or  is 
sued. 

No  act  of  Congress  is  necessary  to  give  the  Supreme 
Court  jurisdiction  of  a  suit  between  States.  Kentucky 
V.  Dennison,  24  How.,  66 ;  New  Jersey  v.  New  York,  5 
Pet,  284 ;  Georgia  v.  Brailsford,  3  DalL,  1. 

A  suit  by  or  against  a  Governor  of  a  State,  in  his  offi- 
cial character,  is  a  suit  by  or  against  a  State.  Kentucky 
V.  Dennison,  Governor,  24  How.,  66. 

Where  the  chief  magistrate  is  sued,  not  by  his  name 
but  in  his  official  character,  and  the  claim  is  made  upon 
him  solely  as  such  officer  and  not  personally  the  State  is 
deemed  the  party  of  record.  Governor  of  Georgia  v. 
Madrazo,  1  Pet,  110. 


Sec.  2.]  JUDICIAL  POWER.  229 

Making  a  State  officer  a  party  does  not  make  the  State. 
a  party,  although  the  officer  may  act  pursuant  to  a  State 
law.     Davis  v.  Gray,  16  Wall.,  203. 

A  suit  against  individuals,  as  officers  of  a  State,  to 
prevent  them  from  enforcing  an  unconstitutional  statute 
is  not  a  suit  against  the  State.  Smyth  v.  Ames,  169 
U.  S.,  466. 

A  suit  against  State  officers  to  recover  real  prop- 
erty is  not  a  suit  against  the  State  so  as  to  deprive  a 
Federal  court  of  jurisdiction.  Tindal  v.  Wesley,  167 
U.  S.,  204. 

When  a  State  holds  a  large  amount  of  bonds,  which 
are  a  lien  upon  a  railroad,  and  the  trustees  of  the  bonds 
are  the  State  agents,  but  hold  the  legal  title  in  trust  for 
the  State,  the  State  may  seek  relief  in  equity  in  the  Su- 
preme Court  against  citizens  of  another  State.  Florida 
V.  Anderson,  91  IT.  S.,  667. 

Where  the  State  is  a  stockholder  in  a  private  corpora- 
tion, the  fact  will  not  give  the  Supreme  Court  original 
jurisdiction  of  suit  where  the  corporation  is  a  party,  nor 
disturb  the  jurisdiction  of  the  Circuit  Court.  Bank  of 
United  States  v.  Planters'  Bank  of  Georgia,  9  Wheat., 
904 ;  Bk.  of  Ky.  v.  Wister,  2  Pet.,  318 ;  Briscoe  v.  Bk.  of 
Ky.,  11  Pet,  324;  Darrington  v.  Bk.  of  Ala.,  13  How., 
12;  Curran  v.  Ark,  15  How.,  304;  Davis  v.  Gray,  16 
Wall.,  203. 

A  suit  against  a  State,  by  its  own  citizen,  can  not  be 
brought  in  a  Federal  Court  without  the  consent  of  the 


230  CONSTITUTION  OF  UNITED  STATES.     [Art.  Ill, 

State.  Hans  v.  Louisiana,  134  U.  S.,  1 ;  N"orth  Caro- 
lina V.  Temple,  134  U.  S.,  22;  Pennoyer  v.  McCon- 
naughy,  140  U.  S.,  1. 

The  llth  Amendment  limits  the  Federal  jurisdiction 
ovefT  suits  against  States  to  those  in  which  the  State  is 
the  real  party  or  a  party  in  the  record.  Lincoln  County 
V.  Luning,  133  U.  S.,  529. 

The  prohibition  to  sue  a  State,  in  the  11th  Amend- 
ment, does  not  extend  to  a  case  in  which  the  State  is  not 
made  a  party  on  the  record,  even  though  it  has  the  en- 
tire ultimate  interest  in  the  subject  of  the  suit.  Osborn 
V.  U.  S.  B.,  9  Wheat.,  738.  But  see,  In  re  Ayers,  123 
U.  S.,  443. 

A  State  may  sue  in  the  Supreme  Court  to  enjoin  pay- 
ment of  a  judgment  in  behalf  of  a  British  creditor  taken 
on  a  debt,  which  was  confiscated  by  the  State,  until  it 
can  be  ascertained  to  whom  the  money  belongs.  Georgia 
V.  Brailsford,  2  DalL,  402,  415. 

It  is  denied  jurisdiction,  by  the  11th  Amendment,  of 
suits  against  a  State  by  citizens  of  another  State  or  the 
citizens  or  subjects  of  foreign  States.  Georgia  v. 
Brailsford,  2  Dall.,  402 ;  Chisholm  v.  Georgia,  2  Ball., 
419;  Cohens  v.  Virginia,  6  Wheat.,  264;  Osborn  v. 
United  States'  Bank,  9  Wheat.,  738 ;  United  States' 
Bank  v.  Planters'  Bank,  9  Wheat.,  904;  Georgia  v. 
Madrazo,  1  Pet,  110;  Cherokee  Nation  v.  Georgia,  5 
Pet.,  1;  Brisco  v.  Kentucky,  11  Pet,  324;  Darrington 
V.  Bk.  of  Ala.,  13  How.,  12 ;  Curran  v.  Ark.,  15  How., 
304;  Davis  v.  Gray,  16  Wall.,  203. 


Sec.  2.]  JUDICIAL  POWEE.  231 

The  Supreme  Court  has  original  jurisdiction  of  suits 
by  a  State  against  citizens  of  other  States,  but  this  was 
not  intended  to  confer  the  power  to  entertain  an  action 
of  a  nature,  not,  upon  settled  principles  of  public  law, 
to  be  entertained  in  the  judiciary  of  another  State ;  such 
as  to  recover  a  penalty  imposed  by  the  laws  of  the  State 
that  sues,  for  a  breach  of  its  municipal  law.  Wisconsin, 
V.  Pelican  Ins.  Co.,  127  U.  S.,  265. 

Suits  between  States  to  settle  boundaries. — The  Su- 
preme Court  has  jurisdiction  of  a  suit  in  equity  filed  by 
one  State  against  another  to  ascertain  and  establish  their 
boundaries.  Rhode  Island  v.  Massachusetts,  12  Pet., 
657 ;  Virginia  v.  Tennessee,  148  U.  S.,  503 ;  Missouri 
V.  Iowa,  7  How.,  660;  Florida  v.  Georgia,  17  How., 
478;  Missouri  v.  Kentucky,  11  Wall.,  397;  Iowa  v. 
Illinois,  147  U.  S.,  1;  Indiana  v.  Kentucky,  136  U.  S., 
479 ;  IsTebraska  v.  Iowa,  143  U.  S.,  359 ;  Iowa  v.  Illinois, 
151  U.  S.,  238. 

Appellate  jurisdiction  of  Supreme  Court  over  United 
States  Courts. — Congress  in  1793  and  in  1789  passed  "a 
judiciary  act"  as  it  is  called,  creating  circuit  and  dis- 
trict courts  and  defining  their  jurisdiction.  By  the 
22d  section  it  gave  the  Supreme  Court  appellate  juris- 
diction over  them  as  follows :  "And  upon  like  process 
(writ  of  error)  may  final  judgments  and  decrees  in  civil 
actions  and  suits  in  equity  in  a  circuit  court,  brought 
there  by  original  process,  or  removed  there  from  the 
courts  of  the  several  States,  or  removed  there  by  appeal 
from  a  district  court,  where  the  matter  in  dispute  ex* 


232 


CONSTITUTIOI^J-  OF  UNITED  STATES.     [Art.  Ill, 


ceeds  the  sum  or  value  of  two  thousand  dollars,  exclu- 
sive of  costs,  be  re-examined  and  reversed  or  affirmed  in 
the  Supreme  Court,  the  citation  being  in  such  case 
signed  by  a  judge  of  such  Circuit  Court,  or  justice  of 
the  Supreme  Court,  and  the  party  having  at  least  thirty 
days'  notice."     Sec.  22,  Ch.  20,  1  Stats,  at  L.,  1789. 

This  appellate  jurisdiction  was  much  changed  by  the 
Act  of  March  3,  1891,  which  created  the  nine  Circuit 
Courts  of  Appeals,  as  intermediate  appellate  courts,  to 
cut  off  from  the  Supreme  Court  a  vast  mass  of  appeals 
in  matters  not  involving  constitutional  or  jurisdictional 
questions.  The  appellate  jurisdiction  over  the  Circuit 
Courts  of  the  United  States,  since  the  Act  of  1891,  is  as 
follows : 

1.  In  any  case  in  which  the  jurisdiction  of  the  trial 
coTirt  is  in  issue  (in  such  cases,  however,  the  question  of 
jurisdiction  only  is  to  be  certified  to  the  Supreme  Court 
from  the  court  below  for  decision). 

2.  From  final  sentences  and  decrees  in  prize  causes. 

3.  From  cases  of  conviction  of  a  capital  or  otherwise 
infamous  crime. 

4.  In  any  case  that  involves  the  construction  or  ap- 
plication of  the  Constitution  of  the  United  States. 

5.  In  any  case  in  which  the  constitutionality  of  any 
law  of  the  United  States,  or  the  validity  or  construction 
of  any  treaty  made  under  its  authority  is  drawn  in 
question. 

6.  In  any  case  in  which  the  Constitution  or  law  of  a 


Sec.  2.]  JUDICIAL  POWER.  233 

State  is  claimed  to  be  in  contravention  of  the  Constitu- 
tion of  the  United  States.   .  (Act  March  3,  1891.) 

Appellate  jurisdiction  of  the  Supreme  Court  over  the 
Court  of  Appeals. — The  Supreme  Court  has  appellate 
jurisdiction  over  the  Circuit  Courts  of  Appeals : 

1.  By  writ  of  error  or  appeal  in  all  cases  where  the 
matter  in  controversy  shall  exceed  $1,000,  besides  costs, 
in  all  cases  where  the  decision  of  the  Circuit  Courts  of 
Appeals  is  not  made  final  as  hereinafter  specified. 

2.  When  the  Supreme  Court  deems  any  matter  be- 
fore a  Circuit  Court  of  Appeals  so  important  that  it 
should  take  charge  of  it  and  decide  it,  the  Supreme 
Court  may  issue  a  writ  of  certiorari  to  the  Circuit  Court 
of  Appeals,  to  send  up  the  case  before  it  to  the  Supreme 
Court,  there  for  final  decision,  review  or  determination. 
The  object  of  this  is,  doubtless,  to  secure  uniformity  of 
decision  in  the  various  Courts  of  Appeals. 

3.  When  one  of  the  Circuit  Courts  of  Appeals  is  in 
doubt  as  to  any  matter,  it  may,  of  its  own  motion,  certify 
to  the  Supreme  Court  any  questions  or  propositions  of 
law,  arising  in  a  case  pending  in  such  Circuit  Court 
of  Appeals,  concerning  which  it  desires  the  instruction 
of  the  Supreme  Court  for  its  proper  decision.  (Act  of 
March  3,  1891.) 

Appellate  jurisdiction  of  the  Supreme  Court  over 

State  Courts. — It  is  declared  in  the  Constitution  of  the 

United  States  that  the  Constitution  of  the  United  States 

and  the  laws  and  treaties  made  in  pursuance  "shall  be 

/ 


234  CONSTITUTION  OF  UNITED  STATES.    [Art.  Ill, 

the  supreme  law  of  the  land ;  and  the  judges  in  the  sev- 
eral States  shall  be  bound  thereby,  anything  in  the  Con- 
stitution of  any  State  to  the  contrary  notwithstanding." 
The  Supreme  Court  is  the  ultimate  tribunal  in  all  such 
cases.  The  Supreme  Court  is  vested  with  the  power  to 
issue  a  writ  of  error  to  review  the  final  judgment  or  de- 
cree of  the  highest  court  of  a  State  in  which  a  decision 
could  be  had  in  the  following  cases : 

1.  Where  the  validity  of  a  treaty  or  statute  of,  or  an 
authority  exercised  under  the  United  States,  is  drawn  in 
question  and  the  decision  of  the  State  Court  is  against 
their  validity ; 

2.  Where  the  validity  of  a  statute  of,  or  an  authority 
exercised  under  a  State,  is  drawn  in  question  on  the 
ground  of  their  being  repugnant  to  the  Constitution, 
treaties  or  laws  of  the  United  States,  and  the  decision  of 
the  State  Court  is  in  favor  of  their  validity ; 

3.  Where  any  title,  right,  privilege  or  immunity  so 
claimed  under  the  Constitution,  or  any  treaty  or  statute 
of,  or  commission  held  or  authority  exercised  under  the 
United  States,  and  the  decision  of  the  State  Courts  is 
against  the  title,  right,  privilege  or  immunity  so  set  up 
or  claimed,  under  such  Constitution,  treaty,  statute, 
commission  or  authority.     K.  S.,  Sec.  709. 

This  is  one  of  the  most  important  statutes  ever  passed 
by  Congress  in  respect  to  far-reaching  consequences.  It 
prevents  the  nullification  of  the  Constitution  or  laws  of 
the  United  States  by  State  legislatures  and  courts.     It 


Sec.  2.]  JUDICIAL  POWER.  235 

has  been  decided  to  be  itself  constitutional.  Martin  v. 
Hunter's  Lessee,  1  Wheat.,  304;  Cohens  v.  Virginia,  6 
id.,  264;  Ableman  v.  Booth,  21  How.,  506;  Williams 
V.  Bruffy,  102  U.  S.,  248. 

The  following  are  among  the  most  important  points 
that  have  been  decided : 

1.  It  is  the  only  means  of  bringing  a  case  from  the 
Supreme  Court  of  a  State  to  the  Supreme  Court  of  the 
United  States.     Verden  v.  Coleman,  22  How.,  192. 

2.  There  is  no  distinction  between  civil  and  criminal 
cases.  Twitchell  v.  Pennsylvania,  7  Wall.,  321.  But, 
if  the  prisoner  should  escape,  the  court  will  not  entertain 
a  writ  of  error  in  his  behalf,  until  he  returns  and  sub- 
mits himself  to  the  court  below.  Bohanan  v.  !N'ebraska, 
125  U.  S.,  692. 

3.  The  citizenship  of  the  parties  is  immaterial. 
French  v.  Hopkins,  124  U.  S.,  524. 

4.  Consent  can  not  give  jurisdiction  in  this  case.  It 
can  be  derived  only  from  the  Constitution  and  laws. 
Mills  V.  Brown,  16  Pet.,  525. 

5.  This  statute  includes  all  cases  where  rights  pro- 
tected by  the  Constitution,  laws  or  treaties  are  involved, 
however  created,  and  no  matter  how  frivolous  the  ob- 
jection.    Hall  V.  Jordan,  15  Wall.,  393. 

6.  This  section  includes  all  cases  in  chancery  as  well 
as  in  law ;  and  in  a  chancery  case,  where  the  evidence  be- 
comes a  part  of  the  record  in  the  highest  court  of  the 
State,  the  Supreme  Court  of  the  United  States  can  re- 


2dQ  COIsrSTITUTION  OF  UIS'ITED  STATES.     [Art.  Ill, 

view  the  law  and  the  facts  so  far  as  necessary  to  de- 
termine the  validity  of  the  right,  title,  etc. ;  but  in  cases 
tried  by  jury  or  in  jury  cases  where  the  jury  has  been 
waived  and  the  court  tries  the  case,  the  Supreme  Court 
can  not  review  the  facts,  but  only  the  questions  of  law 
raised  by  the  record.  Boggs  v.  Mining  Co.,  3  Wall., 
304;  Eiver  Bridge  Co.  v.  Kas.  Pac.  Ey.  Co.,  92  U.  S., 
317. 

7.  It  must  be  from  a  final  judgment  or  decree.  This 
means  the  judgment  which  would,  when  enforced,  end 
the  case.  See  Dainese  v.  Kendall,  119  U.  S.,  53.  It 
must  be  final  as  to  all  matters  within  the  pleadings. 
Craighead  v.  Wilson,  18  How.,  201.  It  may  be  final 
as  to  the  right,  though  it  may  have  some  matters  of  ac- 
count to  be  settled  by  further  decree.  Forgay  v.  Con- 
rad, p  How.,  201. 

The  judgment  may  be  reviewed,  though  it  comes  up 
on  a  case  stated — that  is,  on  an  agreed  state  of  facts, 
Aldrich  v.  Insurance  Co.,  8  Wall.,  491. 

8.  This  writ  of  error  lies  "m  any  suit/'  etc.  What  is 
meant  by  suit  f  The  court  holds  that  it  means  any  pro- 
ceeding in  which  an  individual  proposes  a  remedy  af- 
forded by  law.  Weston  v.  Charleston,  2  Pet.,  449.  It 
includes  not  only  the  ordinary  actions  of  the  common 
law,  but  the  extraordinary  remedies  of  the  common  law, 
such  as  mandamus,  quo  warranto,  writ  of  prohibition 
and  the  writ  of  habeas  corpus,  and  all  suits  in  equity. 
It  also  includes  the  special  proceedings  to  take  land  for 


Sefc.  2.]  JUDICIAL  POWER.  237 

public  use.  Sewing  Maehiiie  Cases,  18  Wall.,  585 ; 
Holmes  v.  Jennison,  14  Peters,  564;  Ex  'parte  Milli- 
gan,  4  Wall.,  133 ;  Kohl  v.  United  States,  91  U.  S., 
375. 

9.  The  suit  need  not  be  necessarily  in  the  highest 
court  of  the  State,  but  in  the  highest  court  in  which  a 
decision  could  be  had.  If  a  case  stops  in  some  lower 
court  and  no  appeal  or  writ  of  error  is  allowed  from  it  to 
a  higher  court  in  that  State,  then  a  writ  of  error  can  be 
sent  to  that  court  which  is  the  highest  to  which  the  case 
can  go.  Gregory  v.  McVeigh,  23  Wall.,  306.  But 
where  the  highest  court  allows  cases  to  come  before  it, 
in  some  instances  only  on  leave  first  obtained,  the  re- 
fusal to  grant  leave  will  be  deemed  equivalent  to  an  af- 
firmance of  the  court  below  and  will  be  deemed  the  judg- 
ment of  the  highest  court.     Id. 

10.  In  some  States  the  legislature  once  had  a  power 
given  by  the  Constitution  to  set  aside  the  judgment  of  a 
State  court.  But  this  fact  did  not  prevent  the  Supreme 
Court  of  the  United  States  from  sending  its  writ  of  error 
to  the  court  (Olney  v.  Arnold,  3  Dall.,  308)  because 
the  statute  gives  writ  to  the  highest  court,  and  the  legis- 
lature is  not  deemed  a  court,  although  it  might  have  this 
power  to  reverse  and  set  aside  judgments. 

11.  The  Supreme  Court  has  jurisdiction  only  over 
such  questions  as  are  defined  in  the  statute  above  quoted. 
They  are  called  "federal  questions"  (Wiscart  v.  Dauchy^ 
3  Dall.,  321),  and  the  record  must  show  a  Federal  ques- 


238  CONSTITUTION  OF  UNITED  STATES.     [Art.  ill, 

tion  is  involved.  Murdock  v.  Memphis,  20  Wall.,  620. 
See  itsTotes,  Gould  &  Tucker,  p.  176,  for  numerous  cita- 
tions. When  it  is  certified  by  the  State  court  that  a 
Federal  question  exists,  this  is  not  conclusive.  Parme- 
lee  V.  Lawrence,  11  Wall.,  36.  And  the  Federal  ques- 
tion must  have  been  raised  and  presented,  though  not 
formally.  Crowell  v.  Kandell,  10  Pet.,  368;  Arm- 
strong V.  Athens  Co.,  16  id.,  281.  It  is  not  enough 
that  a  Federal  question  might  have  been  raised  or  ought 
to  have  been  raised.  Hoyt  v.  Sheldon,  1  Black.,  518 ; 
K.  K.  Co.  V.  Guthard,  114  U.  S.,  136;  The  Victory,  6 
Wall.,  382. 

It  must  appear  that  the  court  either  knew  or  ought  to 
have  known  that  a  Federal  question  was  involved  in  the 
decision  to  be  made.  Brown  v.  Colorado,  106  U.  S., 
95 ;  Boom  Co.  v.  Boom  Co.,  110  U.  S.,  57. 

Generally,  it  may  be  said  that  the  point  whether  a 
Federal  question  is  raised  is  one  of  great  delicacy ;  and 
the  test  is  always  found  in  the  statute.  It  is  necessary 
here  to  recapitulate  the  cases  in  which  the  great,  final, 
ultimate  appellate  jurisdiction  can  be  invoked: 

1.  When  is  drawn  in  question  the  validity  of  the 
United  States  or  a  treaty,  and  the  decision  is  against 
such  validity. 

2.  The  Supreme  Court  has  also  jurisdiction  over  the 
State  court,  under  this  section,  where  is  drav/n  in  ques- 
tion the  validity  of  a  statute,  or  an  authority  exercised 
under  any  State,  on  the  ground  of  their  being  repug- 


Sec.  2.]  JUDICIAL  POWER.  239 

nant  to  the  Constitution,  treaties  or  laws  of  the  United 
States,  and  the  decision  is  in  favor  of  their  validity. 

3.  The  Supreme  Court  has  also  jurisdiction  of  an  ap- 
pellate nature  over  the  State  court,  where  any  rights, 
title,  privilege  or  immunity  is  claimed  under  the  Consti- 
tution, or  any  treaty  or  statute  of,  or  commission  held, 
or  authority  exercised  under,  the  United  States,  and  the 
decision  is  against  the  title,  right,  privilege,  or  immun- 
ity specially  set  up  or  claimed.     R.  S.,  U.  S.,  Sec.  709. 

To  illustrate  the  meaning  of  this  statute  let  us  sup- 
pose that  A  holds  a  piece  of  land  under  a  patent  from 
the  United  States.  Some  one  brings  ejectment  against 
him  in  a  State  court.  He  claims  to  own  it  by  good  title 
derived  from  his  patent  from  the  United  States.  He 
sets  up  his  claim  of  title  and  the  State  court  decides 
against  it — that  it  confers  no  title.  He  appeals  to  the 
Mghest  court  of  the  State ;  and  his  title  is  there  decided 
against.  He  can  then  sue  out  a  writ  of  error  from  the 
Supreme  Court  of  the  United  States  to  the  State  court 
to  obtain  a  review  and  reversal  of  the  decision.  Bell 
V.  Hearne,  19  How.,  252;  Eeichart  v.  Felps,  6  Wall., 
160;  Berthold  v.  McDonald,  22  How.,  334;  Silver  v. 
Ladd,  6  Wall.,  440. 

Another  instance  of  this  appellate  jurisdiction  would 
be  this :  A  holds  a  patent  right  from  the  United  States. 
In  some  action  in  the  State  court  he  sets  up  or  claims 
this  right  as  essential  to  his  claim  or  defense.  The 
highest  court  decides  against  its  validity.     He  then 


240  CO]vrSTITUTION  OF  UI^ITED  STATES.     [Art.  Illy 

seeks  redress,  under  this  clause,  in  the  Supreme  Court 
of  the  United  States. 

So  if  he  held  a  commission  under  the  United  States 
and  it  gave  him  certain  power,  and  he  exercised  that 
power,  and  was  sued  in  the  State  court  and  there  his 
commission  was  held  invalid,  he  might  be  greatly  op- 
pressed and  the  authority  of  the  United  States  overrid- 
den, unless  the  Supreme  Court  could  review  the  adverse 
State  decision  and  uphold  his  right.  See  Gould  & 
Tucker's  ISTotes,  pp.  180-184. 

But  the  question  must  be  a  Federal  question,  that  is, 
it  must  raise  some  one  of  these  questions  specified  in  the 
statute  above  quoted.  The  Supreme  Court  can  not  re- 
view questions  of  mere  general  law.  United  States  v. 
Thompson,  93  U.  S.,  586;  Bank  v. 'McVeigh,  98  U.  S., 
332 ;  Allen  v.  McVeigh,  107  id.,  433.  'Not  can  the  Su- 
preme Court  thus  review  questions  of  local  law,  not  rais- 
ing a  Federal  question.  Poppe  v.  Langford,  104  U.  S.^ 
Y70.  No  Federal  question  is  raised  when  the  State 
court  decides  that  a  law"  of  the  State  is  contrary  to  the 
State  Constitution,  unless  it  also  appears  to  be  against 
the  Federal  Constitution.  Withers  v.  Buckley,  20 
How.,  84 ;  Medbery  v.  Ohio,  20  Ohio,  24  How.,  413 ; 
Porter  v.  Foley,  24  How.,  415 ;  Salomons  v.  Graham, 
15  Wall.,  208;  Hart  v.  Lampshire,  3  Pet,  280;  Wat- 
son V.  Mercer,  8  Pet.,  88 ;  Mitchell  v.  Clark,  110  U.  S., 
633;  West  Tenn.  Bank  v.  Citizens'  Bank,  13  Wall., 


Sec.  3.]  TREASON.  241 

432;  Mitchell  v.  Lenox,  14  Pet.,  49.  See  Gould  & 
Tucker's  :N'otes,  pp.  179,  183 ;  Eustis  v.  BoUes,  150 
U.  S.,  361;  Dower  v.  Eichards,  151  U.  S.,  658,  Qm; 
Mo.  Pac.  Ry.  Co.  v.  Fitzgerald,  160  U.  S.,  556 ;  Os- 
borne V.  Florida,  164  U.  S.,  650;  Wade  v.  Lawder,  165 
U.  S.,  624. 

Territorial  courts, — These  courts  are  created  by  Con- 
gress, under  the  power  to  make  all  needful  rules  and 
regulations.  They  are  not  courts  of  the  United  States^ 
Am.  Ins.  Co.  v.  Canter,  1  Pet.,  511 ;  Benner  v.  Porter^ 
9  How.,  235;  Forsyth  v.  United  States,  9  How.,  571;. 
Clinton  v.  Englebrecht,  13  Wall.,  434;  Hornbuckle 
V.  Toombs,  18  Wall.,  648 ;  Reynolds  v.  United  States, 
98  U.  S.,  145;  Good  v.  Martin,  95  U.  S.,  90.  Their 
judges  are  not  judges  of  the  courts  of  the  United 
States.     Id. 

TREASON  DEFINED,  ETC. 

Section  3.  "Treason  against  the  United  States  shall 
consist  only  in  levying  war  against  them,  or  in  adhering 
to  their  enemies,  giving  them  aid  and  comfort.  No  person 
shall  be  convicted  of  treason  unless  on  the  testimony  of 
two  witnesses  to  the  same  overt  act,  or  on  confession  in 
open  court. 

"The  Congress  shall  have  power  to  declare  the  punish- 
ment of  treason,  but  no  attainder  of  treason  shall  work 
corruption  of  blood,  or  forfeiture,  except  during  the  life 
of  the  person  attained." 
16 


242  CONSTITUTION"  OF  UI^ITED  STATES.     [Art.  IV, 

What  is  treason? — There  must  be  an  actual  assem- 
blage of  men  for  the  treasonable  purpose,  to  constitute 
levying  war.  A  mere  conspiracy  or  the  enlistment  of 
men  is  not  sufficient.  Ex  parte  BoUman,  4  Cranch,  Y5. 
But  when  enemies  are  at  war  with  the  United  States, 
the  enlisting  or  procuring  enlistments  for  the  enemy's 
service  is  treason.  Respublica  v.  M'Carty,  2  DalL,  86. 
Nothing  will  excuse  joining  the  enemy  but  the  fear  of 
present  death.  Id.  Fear  of  loss  of  property  or  its 
destruction,  or  of  slight  or  remote  injury  to  the  person 
will  not  excuse  (United  States  v.  Vigol,  2  DalL,  346), 
nor  will  drunkenness.  Respublica  v.  Weidle,  2  DalL, 
88.  It  is  treason  to  suppress  by  armed  force  the  officer 
X)f  excise  and  to  render  nugatory  the  laws  of  Congress. 
U.  S.  V.  Vigol,  2  DalL,  346 ;  U.  S.  v.  Mitchell,  2  DalL, 
S48. 

Who  may  he  guilty  of  treason. — Only  a  citizen  can  be 
guilty  of  high  treason.  United  States  v.  Villato,  2  DalL, 
370.  It  is  a  breach  of  allegiance  and  can  be  committed 
only  by  one  owing  allegiance  either  permanent  or  tem- 
porary.   United  States  v.  Wiltberger,  5  Wheat,  76,  97. 

Aliens  domiciled  in  the  United  States  owe  a  local 
and  temporary  allegiance  to  the  government  of  the 
United  States,  and  are  equally  amenable  with  citi- 
zens for  infraction  of  the  laws,  except  such  as  relate 
immediately  to  citizenship,  while  they  reside  within  the 
United  States.  For  selling  salt  petre  to  the  Confed- 
erate States  knowing  that  it  was  to  be  used  in  the  manu- 
facture of  gun  powder,  they  were  amenable  for  treason 


Sec.    1.]  FAITH  AIS^D   CREDIT^   ETC.  243 

in  giving  aid  and  comfort  to  the  enemy.     Carlisle  v. 
United  States,  16  Wall.,  147. 


AETICLE    lY. 

FAITH  AND  CREDIT  TO  ACTS^  ETC.,  OF  OTHER  STATES. 

Section  1.  "Full  faith  and  credit  shall  be  given  in 
each  State  to  the  public  acts,  records,  and  judicial  proceed- 
ings of  every  other  State.  And  the  Congress  may  by  gen- 
eral laws  prescribe  the  manner  in  which  such  acts,  records, 
and  proceedings  shall  be  proved,  and  the  effect  thereof." 

When  full  faith  and  credit  to  he  given. — This  rule 
applies  to  courts  only  so  far  as  they  have  jurisdiction. 
Lacking  that  the  record  is  not  entitled  to  credit  (Pub. 
Works  V.  Columbia  College,  17  Wall.,  621)  and  does 
not  prevent  an  inquiry  into  the  jurisdiction.  Thomp- 
son V.  Whitman,  18  Wall.,  457. 

The  record  may  be  contradicted  by  proving  the  facts 
therein  stated  or  recited  to  show  jurisdiction  to  be  false. 
Id.  Want  of  jurisdiction  may  be  shown  either  of  the 
subject  matter,  the  person  or  the  rem.  Id.  D'Arcy  v. 
Ketchum,  11  How.,  165;  Ejiowles  v.  Gas  Light  Coke 
Co.,  19  Wall.,  58 ;  Hall  v.  Lanning,  91  U.  S.,  160. 

In  an  action  on  a  judgment  rendered  in  another 
State,  the  defendant,  notwithstanding  the  record  shows 
a  return  of  a  sheriff  that  he  was  personally  served  with 


244  CONSTITUTION  OF  UNITED  STATES.       [Art.  IV, 

process,  may  show  the  contrary  to  defeat  jurisdiction. 
Knowles  v.  Gas  Light  and  Coke  Co.,  19  Wall.,  68. 

A  judgment  obtained  against  a  non-resident  joint 
debtor,  without  notice  to  him,  is  entitled  to  no  faith  and 
credit  out  of  the  jurisdiction  where  rendered.  D'Arcy 
V.  Ketchum,  11  How.,  165. 

Under  this  clause  and  K.  S.,  Sec.  905,  a  judgment 
recovered  in  one  State  against  two  joint  defendants, 
only  one  of  whom  has  been  duly  served  with  summons, 
and  which  is  valid  and  enforcible  by  the  law  of  that 
State  against  the  former  alone,  will  support  an  action 
against  the  one  so  served  in  another  State.  Hanley  v. 
Donoghue,  116  U.  S.,  1 ;  Kenaud  v.  Abbott,  116  U.  S., 
277. 

In  a  personal  action  brought  in  a  State  against  a  cor- 
poration that  is  not  incorporated  there,  nor  does  busi- 
ness nor  has  an  agent  or  property  in  such  State,  a  judg- 
ment rendered  can  not  be  recognized  as  valid  in  any 
other  State;  even  though  the  summons  were  served  on 
the  President  while  temporarily  in  such  State.  Goldey 
V.  Morning  'News,  156  U.  S.,  518. 

The  tribunals  of  one  State  have  no  jurisdiction  over 
persons  of  other  States  unless  found  within  their  terri- 
torial limits.     Galpin  v.  Page,  18  Wall.,  350. 

The  partner,  not  residing  in  the  State  where  the  firm 
is  sued,  is  not  personally  bound  by  the  judgment  recov- 
ered in  that  State,  when  he  is  not  served,  though  after 
dissolution  other  partners  did  appear  and  entered  ap- 


Sec.  1.]  FAITH    AND    CREDIT,    ETC.  245 

pearance  for  all  the  parties.  Hall  v.  Lanning,  91  U.  S., 
160. 

Process  from  tlie  tribunals  of  one  State  can  not  run 
into  another  State  and  summon  a  party  there  domi- 
ciled; and  publication  of  process  within  the  State  can 
not  summon  him  to  appear.  A  judgment  obtained  on 
such  service  may  be  sufficient  to  dispose  of  the  prop- 
erty of  the  defendant  brought  by  seizure  or  some  equiv- 
alent act  within  the  control  of  the  court ;  but  as  to  the 
absent  defendant's  personal  rights  and  obligations  it  is 
ineffectual.  A  judgment  against  him  personally  for 
the  recovery  of  money,  rendered  upon  such  constructive 
service,  is  not  entitled  to  credit  in  the  Federal  courts  or 
courts  of  other  States.  Pennoyer  v.  'Ne&,  95  XJ.  S., 
714. 

Where,  by  the  State  law,  constructive  service  by  pub- 
lication of  summons  or  process  is  provided,  and  upon 
such  service  the  court  is  authorized  to  adjudicate  upon 
the  rights  of  the  absent  party,  strict  compliance  with 
the  statutory  mode  of  service  must  be  observed.  Gal- 
pin  V.  Page,  18  Wall.,  350. 

Where  B,  a  citizen  of  Maryland,  had  executed  a  bond, 
with  a  warrant  authorizing  any  attorney  of  any  court  of 
record  in  the  State  of  New  York  or  any  other  State  to 
confess  judgment  for  the  penalty,  and  judgment  hav- 
ing been  entered  in  Pennsylvania  under  local  law,  with- 
out service  of  process  or  appearance  of  attorney  or  in 
person  by  the  defendant,  the  courts  of  Maryland  were 


246  COXSTITUTIOK^  OF  UI^ITED  STATES.       [Art.  lY, 

not  bound  to  give  faith  and  credit  to  such  judgment. 
Grover,  etc.,  Mch.  Co.  v.  Eadcliffe,  137  U.  S.,  287. 

This  provision  "establishes  a  rule  of  evidence  rather 
than  of  jurisdiction."  "It  does  not  make  the  judg- 
ments of  other  States  domestic  judgments  to  all  in- 
tents and  purposes,  but  only  gives  a  general  validity, 
faith  and  credit  to  them  as  evidence.  No  execution  can 
issue  upon  such  judgments  without  a  new  suit  in  the 
tribunals  of  other  States.  And  they  enjoy  not  the  rights 
of  priority  or  lien,  which  they  have  in  the  State  where 
they  are  pronounced."  See  Wisconsin  v.  Pelican  Co., 
127  U.  S.,  292.  "To  give  it  force  of  a  judgment  in  an- 
other State  it  must  be  sued  upon  and  made  a  judgment 
there  and  can  only  be  executed  as  its  laws  may  permit." 
M'Elmoyle  v.  Cohen,  13  Pet.,  312,  325. 

As  to  public  acts,  records  and  judicial  proceedings, 
this  clause  requires  that  the  same  effect  be  given  them 
that  by  law  and  usage  they  have  at  home.  Chicago, 
etc.,  K'y  Co.  v.  Wiggins,  119  U.  S.,  615. 

A  statute  which  declares  that  "no  action  shall  be 
maintained  on  any  judgments  or  decree  rendered  with- 
out the  State  against  one  who  was  at  the  time  a  resident 
of  the  State  passing  the  law,  is  void  as  in  conflict  with 
the  full  faith  and  credit  clause.  Christmas  v.  Russell, 
5  Wall.,  290. 

Records  and  judicial  proceedings  of  each  State,  so  far 
as  they  affect  property  in  that  State,  must  be  given  the 
eame  force  and  effect  in  other  States  that  they  have  at 


Sec.  1.]  FAITH  AND  CREDIT^  ETC.  247 

home;  but  as  to  similar  property  elsewhere  they  have 
no  greater  effect  than  similar  records  or  proceedings  of 
the  State  not  of  origin.  Eobertson  v.  Pickrell,  109 
U.  S.,  608. 

The  power  of  a  will  is  determined  by  the  law  of  the 
State  where  the  land  lies.  If  admitted  to  probate  in 
another  State,  the  validity  of  the  devise  is  determined 
not  by  the  judgment  of  probate  but  by  the  lex  rei  sitae 
(the  law  of  the  site  of  the  land).  Robertson  v.  Pick- 
rell,  109  U.  S.,  608. 

The  laws  of  another  State,  in  order  for  the  court  of  a 
State  to  give  them  full  force  and  credit,  must  be  proved 
as  a  fact.  Chicago,  etc.,  R'y  Co.  v.  Wiggins  Ferry  Co., 
119  U.  S.,  615. 

A  judgment  of  one  State  has  the  same  effect  as  a 
domestic  judgment  of  another  State,  under  this  clause, 
only  so  far  as  to  preclude  all  inquiry  into  the  merits. 
M'Elmoyle  v.  Cohen,  13  Pet.,  312. 

The  probate  of  a  will  is  not  conclusive  abroad  to  any^ 
farther  extent  than  in  the  State  where  granted.  Darby's 
Lessee  v.  Mayer,  10  Wheat.,  465. 

The  judgment  of  one  State  is  conclusive  evidence  in 
another,  although  commenced  by  attachment  of  prop- 
erty, the  defendant  having  afterwards  appeared  and  de- 
fended.    Mayhew  v.  Thatcher,  6  Wheat.,  129. 

Nil  debet  (that  he  does  not  owe)  is  not  a  good  plea  to 
an  action  founded  on  a  judgment  of  another  State. 
Mills  V.  Duryee,  7  Cranch,  481. 


248  COI^STITUTIOI^  OF  UNITED  STATES.       [Art.  IV, 

The  judgment  of  a  State  court  has  the  same  credit, 
effect  and  validity  in  every  other  court,  within  the 
United  States  which  it  had  in  the  State  where  rendered, 
and  only  such  pleas  as  could  be  made  to  it  there  can  be 
made  elsewhere.  Hampton  v.  M'Connel,  3  Wheat, 
234;  Hanley  v.  Donoghue,  116  U.  S.,  1. 

An  action  of  debt  will  not  lie  against  an  administra- 
tor in  one  State,  on  a  judgment  recovered  against  a  dif- 
ferent administrator  of  the  same  intestate  appointed  in 
another  State,  under  its  authority.  Stacy  v.  Thrasher, 
6  How.,  44.  There  is  no  privity  between  the  two  ad- 
ministrators.    Id. 

Statutes  of  limitation  may  bar  judgments  obtained 
in  other  States.     B'k  of  Ala.  v.  Walton,  9  How.,  522. 

When  A  is  sued  in  one  State  upon  an  assessment  or 
call  upon  stockholders  made  in  another  State,  made  by 
the  court  in  winding  up  the  corporation,  and  A  pleads 
the  general  statute  of  limitations  of  the  State  where  the 
suit  is  brought,  no  Federal  question  as  to  faith  and 
credit  is  raised.  Great  Western  Tel.  Co.  v.  Purdy,  162 
TJ.  S.,  329. 

A,  B,  and  C  resided  in  I^ew  York.  A  owed  both  B 
and  C  severally.  He  gave  a  mortgage  on  chattels  in 
Illinois  to  secure  B,  but  the  same  was  not  recorded, 
which  by  the  laws  of  Illinois  was  essential  to  validity, 
as  also  was  delivery.  C  attached  the  property  in  Illi- 
nois and  levied  upon  and  sold  it.  B  was  no  party  to  this 
proceeding  and  did  not  intervene;  but  sued  C  in  N'ew 


Sec.  1.]  FAITH    AND    CREDIT,    ETC.  249 

York  for  converting  the  property.  C  pleaded  in  bar 
the  proceeding  in  Illinois,  which  plea  was  overruled  hj 
the  State  court.  This  was  in  violation  of  the  full  faith 
clause.     Green  v.  Van  Buskirk,  7  Wall.,  139. 

A  court  of  equity  may  enjoin  a  creditor  (who  is 
within  its  jurisdiction)  from  prosecuting  his  debtor  in 
another  State,  when  proceedings  have  been  instituted 
against  the  debtor,  under  a  general  State  insolvent  law ; 
and  the  creditor  attaches  property  in  another  State, 
which  the  insolvent  law  requires  the  debtor  to  transfer 
to  his  assignee  for  distribution.     Cole  v.  Cunningham, 

133  U.  S.,  107. 

The  mere  construction  of  a  statute  of  a  State,  without 

denying  its  validity,  does  not  deny  it  full  faith  and 
credit  {  especially  where  no  decision  in  the  State  where 
the  statute  was  enacted  is  in  conflict  with  such  construc- 
tion.    Glenn  v.  Garth,  147  U.  S.,  360. 

One  who  holds  bonds  of  one  State  may  be  taxed  upon 
them  in  another,  where  he  resides.  Such  taxation  does 
not  violate  this  full-faith  clause.  Bonaparte  v.  Tax 
Court,  104  U.  S.,  592. 

Whether  a  State  court  has  denied  full  faith  and 
credit  to  the  judicial  proceedings  of  another  State  is  a 
Federal  question ;  and  whether  the  statute  of  a  State  is 
of  a  penal  nature  so  that  another  State  will  not  give  it 
effect,  will  be  determined  by  the  Supreme  Court  of  the 
United  States.  Huntington  v.  Attrill,  146  U.  S.,  657. 
A  statute  making  a  stockholder  liable  for  all  the  debts 


250  CONSTITUTIOI^  OF  UNITED  STATES.       [Art.  IV^ 

of  the  corporation  is  not  penal;  and  full  effect  should 
be  given  to  the  liability  in  another  State.  Id.  The 
courts  of  the  United  States,  exercising  original  jurisdic- 
tion take  judicial  notice,  without  proof,  of  the  laws  of 
the  several  States  of  the  United  States;  but  the  Su- 
preme Court,  exercising  appellate  jurisdiction,  regards 
as  matter  of  fact  whatever  was  matter  of  fact  in  the 
State  court.  Chicago,  etc.,  E'y  Co.  v.  Wiggins  Ferry 
Co.,  119  U.  S.,  615. 

Objection  that  a  record  of  authentication  is  incom- 
plete must  be  raised  in  the  court  below;  it  can  not  be 
raised  for  the  first  time  in  the  appellate  court.  Car- 
penter V.  Strange,  141  U.  S.,  87. 

"No  other  authenti6ation  is  necessary  than  that  pre- 
scribed by  the  act  of  Congress.  The  seal  of  the  State 
is  sufficient  to  an  act  of  the  legislature.  United  States 
V.  Amedy,  11  Wheat,  392.     See,  R.  S.  U.  S.,  Sec.  908. 

When  the  courts  of  one  State  construe  the  statutes  of 
another  State  differently  from  their  construction  at 
home,  it  does  not  justify  removal  to  the  Federal  court, 
but  the  remedy  is  by  writ  of  error  from  the  Supreme 
Court,  when  full  faith  is  not  given  to  the  acts,  etc.,  of 
the  other  State.  Chicago,  etc.,  R'y  Co.  v.  Wiggins*^ 
Ferry  Co.,  108  U.  S.,  18. 

In  a  proceeding  in  a  Federal  court  to  enforce  a  lia- 
bility created  by  a  State  statute,  the  same  effect  will  be 
given  to  a  judgment  of  a  State  court  either  as  evidence 
or  as  a  cause  of  action,  as  is  given  to  it  in  the  courts  of 


Sec.   1.]  FAITH  AND  CREDIT^  ETC.  251 

the  State  whose  laws  are  invoked  in  the  enforcement. 
Chase  v.  Curtis,  1^3  U.  S.,  452. 

S.  sued  a  railway  company  in  Kansas  for  wages  in 
justice's  court  and  recovered  all  he  claimed.  The  com- 
pany appealed  to  the  district  court.  When  called  for 
trial  the  company  asked  continuance  on  the  ground  that 
a  creditor  of  Sturm  had  sued  him  in  an  Iowa  court,  of 
which  State  the  company  was  also  a  corporation,  and  re- 
covered a  judgment  there  from  which  an  appeal  had 
been  taken  which  was  still  pending  and  that  in  that  ac- 
tion the  defendant  corporation  had  been  garnisheed  for 
the  same  debt  as  that  on  which  the  suit  was  brought.  Mo- 
tion for  stay  and  for  new  trial  denied.  Heldj  that  the 
Iowa  court  had  jurisdiction  and  the  Kansas  courts  did 
not  give  the  Iowa  proceedings  due  faith  and  credit,  for 
which  reason  judgment  was  reversed.  Chicago,  etc., 
E'y  Co.  V.  Sturm,  174  U.  S.,  710. 

In  an  action  begun  in  'Egw  York  by  the  plaintiff 
against  a  former  husband  to  recover  alimony  awarded 
by  a  decree  of  a  court  of  !N'ew  Jersey,  the  ^New  York 
court  denied  the  relief  on  the  ground  that  the  decree 
was  erroneous,  according  to  the  law  and  practice  of 
New  Jersey.  Held,  that  the  New  York  court  should 
have  given  full  faith  and  credit  to  the  judgment,  leav- 
ing the  defendant  to  seek  his  remedy  of  reversal  for 
errors  in  the  courts  of  New  Jersay.  Laing  v.  Eigney, 
160  U.  S.,  531. 

Liability  of  stochholders  for  debts  of  corporation, 
when  enforcible  by  courts  of  other  States, — 1.  The 


252  CONSTITUTION  OF  UNITED  STATES.      [Art.  lY, 

liability  of  a  stockholder,  fixed  by  the  laws  of  the 
State  of  the  domicile  of  the  corporation  of  another 
State,  is  contractual  and  not  'penal  in  its  nature  and 
may  be  sued  for  in  the  Federal  courts  of  another  State 
where  the  stockholder  resides.  Whitman  v.  Oxford 
I^ational  Bank,  176  U.  S.,  559.     See,  ante,  p.  249. 

2.  And  when  the  judgment  of  a  court  of  the  State  of 
domicile  of  the  corporation  has  been  rendered  and  is 
conclusive  upon  the  stockholder  who  is  liable,  the  courts 
of  other  States  must  give  full  faith  and  credit  to  such 
judgments.  Hancock  National  Bank  v.  Farnum,  176 
U.  S.,  640.     Huntington  v.  Attrill,  146  U.  S.,  657. 

PRIVILEGES  AND  IMMUNITIES  OF  CITIZENS. 

Section  2.  "The  citizens  of  each  State  shall  be  en- 
titled to  all  privileges  and  immunities  of  citizens  in  the 
several  States." 

N^OTE. — What  are  privileges  and  immunities? — The 
Supreme  Court  will  not  describe  and  define  these  privi- 
leges and  immunities  in  a  general  classification,  prefer- 
ring to  decide  each  case  as  it  arises.  Conner  v.  El- 
liott, 18  How.,  591 ;  Ward  v.  Maryland,  12  Wall.,  418, 
430;  Blake  v.  McClung,  172  U.  S.,  248. 

The  privileges  and  immunities  of  citizens  guarantied 
by  the  Constitution  did  not  (as  the  Constitution  was 
prior  to  the  late  amendments)  apply  to  free  negroes, 


Sec.  2.]  PRIVILEGES  AND  IMMUNITIES.  253 

whose  ancestors  were  brouglit  to  this  country  and  sold 
as  slaves.     Dred  Scott  v.  Sandford,  19  How.,  393. 

It  was  undoubtedly  the  object  of  the  clause  in  ques- 
tion to  place  the  citizens  of  each  State  upon  the  same 
footing  with  citizens  of  other  States,  so  far  as  advan- 
tages resulting  from  citizenship  in  those  States  are  con- 
cerned. It  relieves  them  from  the  disabilities  of  alien- 
age in  other  States;  it  inhibits  discriminating  legisla- 
tion against  them  in  other  States;  it  gives  them  the 
right  of  free  ingress  into  them  and  egress  from  them ;  it 
insures  to  them  in  other  States  the  same  freedom  pos- 
sessed by  the  citizens  of  those  States  in  the  acquisition 
and  enjoyment  of  property  and  in  the  pursuit  of  happi- 
ness; and  it  secures  to  them  in  other  States  the  equal 
protection  of  their  laws.  It  has  been  justly  said  no  pro- 
vision of  the  Constitution  has  tended  so  strongly  to  con- 
stitute the  citizens  of  the  United  States  one  people  a» 
this.     Paul  V.  Virginia,  8  Wall.,  168,  180. 

The  privileges  and  immunities  which  this  clause  se- 
cures are  those  common  to  the  citizen,  not  such  special 
privileges  as  a  State  may  give  its  citizens  or  some  of 
them,  such  as  the  right  to  fish  in  public  waters.  Paul  v. 
Virginia,  8  Wall.,  168. 

This  clause  does  not  vest  the  citizens  of  one  State  with 
any  interest  in  the  common  property  of  the  citizens  of 
other  States.  The  citizens  of  a  State  may  be  authorized 
to  plant  oysters  in  the  soil  of  tide  waters  within  the 


254  coA^STiTUTiOK-  or  united  states.     [Art.  IV,' 

State,  and  citizens  of  other  States  may  be  forbidden. 
McCready  v.  Virginia,  94  U.  S.,  391. 

This  clause  does  not  prevent  a  State  from  imposing  a 
tax  on  all  sales  made  by  auction  in  it  (except  by  im- 
porters of  imported  goods  in  the  original  packages),  and 
where  such  tax  is  imposed  on  its  own  citizens,  it  may  be 
imposed  in  the  same  manner  and  to  the  same  extent  on 
citizens  of  other  States.  Woodruff  v.  Parham,  8  Wall., 
123.  So  an  ordinance  of  a  city  imposing  a  license  tax 
of  $200  upon  dealers  in  beer  or  ale  by  the  cask,  not  man- 
ufactured in  that  city,  is  valid.  It  does  not  discrimi- 
nate against  citizens  of  other  States.  Downham  v. 
Alexandria,  10  Wall.^  173. 

Instances  of  statutes  repugnant  to  this  section,  as  de- 
priving citizens  of  their  privileges  and  immunities. — It 
is  not  in  the  power  of  a  State,  when  establishing  regula- 
tions for  the  conduct  of  private  business  of  a  particular 
kind,  to  give  its  own  citizens  essential  privileges  which 
it  denies  to  other  States.  Blake  v.  McClung,  172  U.  S., 
239. 

A  law  of  a  State  which  provides  that  in  case  of  for- 
eign corporations  carrying  on  business  in  the  State,  and 
becoming  insolvent,  resident  creditors  shall  be  preferred 
to  non-resident  creditors,  is  repugnant  to  this  provision 
of  the  Constitution.  ^  Blake  v.  McClung,  172  U.  S., 
239. 

This  case  (Blake  v.  McClung,  172  U.  S.,  239)  was 
again  before  the  court  in  176  U.  S.,  59,  the  judgment 


Sec.  2.]  PRIVILEGES  AK^D  IMMUJS^ITIES.  255 

rendered  below  not  being  in  conformity  to  the  decision, 
and  mandate,  and  again  it  is  declared  that  creditors, 
who  are  citizens  of  the  United  States  are  entitled  to 
stand  on  the  same  plane  with  resident  creditors  in  the 
distribution  of  the  estate  of  a  foreign  corporation.  Blake 
V.  McClnng,  176  U.  S.,  59.  See  Sully  v.  Am.  JN'at.  Bk., 
178  IT.  8.,  289. 

The  due  process  clause  of  the  14th  Amendment  does 
not  regulate  practice  in  the  State  courts  nor  control 
procedure  therein;  and  all  its  requirements  are  com- 
plied with  when  the  person  condemned  or  whose  rights 
are  adjudicated  has  had  sufficient  notice  and  adequate 
opportunity  to  defend.  Louisville,  etc.,  Co.  v. 
Schmidt,  177  IT.  S.,  230.  In  this  case  the  point  of  ob- 
jection was  that  the  company  had  been  precluded  from 
proving  defenses  not  pleaded.  To  the  general  proposi- 
tion, the  same  ruling  is  in  Iowa  Cent.  R'y  v.  Iowa,  160 
U.  S.,  389  ;  Wilson  v.  N'orth  Carolina,  169  U.  S.,  586. 

A  Maryland  statute  provided  that  resident  traders 
should  take  out  and  pay  for  licenses  to  carry  on  business 
at  one  rate  and  that  non-residents  should  pay  at  a  higher 
rate,  or  be  punished  for  doing  business.  Held,  that  the 
statute  was  void,  so  far  as  it  conflicted  with  this  provi- 
sion as  to  privileges  and  immunities.  The  non-resident 
may  lawfully  sell  or  offer  or  expose  for  sale,  any  goods 
which  permanent  residents  might  lawfully  sell  or  offer 
or  expose  for  sale,  without  being  subjected  to  any  higher 


256  coiNTSTiTUTioiq^  of  united  states.     [Art.  lY, 

tax  or  excise  than  that  exacted  by  law  of  permanent  resi- 
dents.    Ward  V.  Maryland,  12  Wall.,  418,  430. 

The  citizen  has  a  right  to  come  to  the  seat  of  govern- 
ment to  press  his  claims  and  seek  its  protection,  inde- 
pendent of  the  will  of  any  State  over  wKose  soil  he  may 
pass  in  coming  or  going.  Crandall  v.  ITevada,  6  Wall., 
35,  44. 

'No  State  can  by  any  law,  subsequent  to  the  Consti- 
tution, make  a  foreigner  or  any  other  class  of  persons 
citizens  of  the  United  States,  nor  entitle  them  to  the 
J'ights  and  privileges  secured  by  the  Federal  Constitu- 
tion.    Dred  Scott  v.  Sandford,  19  How.,  393. 

The  right  of  the  people  of  one  State  to  take  what  is 
their  property  into  a  territory  of  the  United  States  and 
there  hold  it  as  property  is  applicable  to  property  held  in 
slaves  in  a  State  where  slavery  exists  by  law.  Dred 
Scott  V.  Sandford,  19  How.,  393. 

An  act  of  Congress  prohibiting  slavery  in  a  territory 
of  the  United  States  held  unconstitutional.  Dred  Scott 
V.  Sandford,  19  How.,  393. 

Instances  where  State  statutes  are  held  not  repugnant 
to  those  provisions. — The  provision  in  the  14th  Amend- 
ment that  "no  State  shall  make  or  enforce  any  law 
which  shall  abridge  the  privileges  or  immunities  of  citi- 
zens of  the  United  States"  does  not  deter  the  State  from 
passing  such  laws  as  it  deems  necessary  to  regulate  the 
privileges  and  immunities  of  its  own  citizens  and  as  do 
not  abridge  their  privileges  as  citizens  of  the  United 


Sec.  2.]  PRIVILEGES  AIS^D  IMMUNITIES.  257 

States.  A  State  may  prescribe  what  bodies  may  be  or- 
ganized to  constitute  its  organized  militia,  and  forbid 
others  from  organizing.  Pressor  v.  Illinois,  116  U.  S., 
252. 

The  privileges  and  immunities  of  citizens  of  the 
United  States  do  not  necessarily  include  all  the  rights 
protected  by  the  first  eight  amendments  to  the  Con- 
stitution of  the  United  States.  A  State  may  abolish  the 
grand  jury  system  or  provide  for  a  charge  of  crime 
without  the  presentment  or  indictment  of  a  grand  jury, 
or  may  provide  for  a  jury  of  less  than  twelve  men  to  try 
one  accused  of  crime.  Maxwell  v.  Dow,  176  U.  S., 
581. 

A  uniform  tax  on  all  sales  by  auction  whether  by  citi- 
zens or  non-residents,  imposed  by  ordinance  of  a  city,  is 
not  repugnant  to  this  clause.  Woodruff  v.  Parham,  8 
Wall.,  123. 

A  State  statute  which  compels  peddlers  of  goods  to 
take  out  license,  under  penalty,  making  no  discrimina- 
tion between  residents  or  products  of  the  State  and  those 
of  other  States,  does  not  violate  this  section.  Emert  v. 
Missouri,  156  U.  S.,  296. 

The  law  of  Louisiana,  which  gives  the  community  of 

gains  between  married  persons,  does  not  apply  when  the 

marriage  is  contracted  and  the  parties  reside  outside  of 

that  State,  even  to  lands  owned  in  Louisiana.     This  is  a 

right  which  Louisiana  may  regulate,  not  one  of  the  per- 
17 


258  CONSTITUTIOIs^  OF  UNITED  STATES.       [Art.  IV, 

sonal  rights  of  a  citizen  within  the  meaning  of  the 
Constitution.     Connor  v.  Elliott,  18  How.,  591. 

The  Iowa  statute  which  provides  that  any  one  having 
Texas  cattle  shall  be  liable  for  damages  for  allowing 
them  to  run  at  large  and  spread  the  "Texas  Fever"  does 
not  conflict  with  this  section  of  the  Constitution.  Kim- 
mish  V.  Ball,  129  U.  S.,  217. 

The  admission  of  a  person  to  the  practice  of  law  in  the 
courts  of  a  State  is  not  a  privilege  or  immunity  which  a 
State  may  not  deny.  In  re  Lockwood,  154  U.  S.,  116 ; 
Bradwell  v.  The  State,  16  Wall.,  130.  As  to  privileges 
and  immunities  as  affected  by  the  13th  and  14th  Amend- 
ments see  Slaughter-House  Cases,  16  Wall.,  36. 

A  general  tax  laid  on  all  property  alike,  as  where  coal 
is  sent  from  one  State  to  another  to  be  sold,  and  there  be- 
comes intermingled  with  the  property  of  that  State, 
does  not  violate  this  clause  of  the  Constitution.  Brown 
V.  Houston,  114  U.  S.,  622. 

The  right  to  sell  intoxicating  liquors  is  not  one  of  the 
privileges  and  immunities  of  citizens,  protected  by  the 
Constitution.  Bartemeyer  v.  Iowa,  18  Wall.,  129 ;  Gi- 
ozza  V.  Tiernan,  148  U.  S.,  657 ;  Mugler  v.  Kansas,  123 
U.  S.,  623.  Licenses  may  be  granted  only  to  residents 
of  the  State.     Id. 

A  State  law  prohibiting  the  carrying  of  dangerous 
weapons  abridges  no  constitutional  privilege  or  immun- 
ity.    Miller  v.  Texas,  153  U.  S.,  535. 

The  provision  in  a  State  law  that  when  the  defendant 


Sec.  2.]  PRIVILEGES  AND  IMMUNITIES.  259 

is  out  of  the  State,  the  statute  of  limitations  shall  not 
run  against  the  resident  plaintiff,  does  not  violate  Sec- 
tion II  of  Article  lY.  Chemung  Canal  Co.  v.  Lowery, 
93  U.  S.,  72. 

In  actions  at  law  in  Federal  courts  the  State  rule 
does  not  apply  that  the  defendant  may  demur  to  the  com- 
plaint when  it  appears  therefrom  that  the  statute  of  lim- 
itations has  run.  Chemung  Canal  Co.  v.  Lowery,  93 
U.  S.,  Y2. 

There  is  nothing  in  the  Constitution  or  laws  of  the 
United  States  which  exempts  an  offender,  brought  be- 
fore the  courts  of  a  State,  from  trial  and  punishment, 
even  though  brought  there  by  unlawful  violence  or  by 
the  abuse  of  legal  process.  Ker  v.  Illinois,  119  U.  S., 
436;  Mahon  v.  Justice,  127  U.  S.,  700;  Cook  v.  Hart, 
146  U.  S.,  183, 190,  192. 

In  Louisiana  it  is  allowed  to  take  land  for  the  con- 
struction of  levees  on  the  Mississippi  river  without  com- 
pensation, as  they  were  subject  to  such  servitude  under 
the  former  French  law.  Land  so  taken  belonging  to  a 
citizen  of  another  state  gives  him  no  claim  that  his 
privileges  and  immunities  have  been  illegally  taken 
away.     Eldridge  v.  Trezevant,  160  U.  S.,  452. 

The  provision  of  the  'New  York  Criminal  Procedure 
Code  (Sees.  527,  555)  for  admitting  to  bail  for  non- 
capital offenses  only  by  filing  certificate  of  a  judge  as  to 
•reasonable  doubt  whether  the  judgment  should  stand, 
is  not   repugnant   to   this   section.     The    Constitution 


260  CONSTITUTION-  OF  UNITED  STATES.       [Art.  lY, 

does  not  mean  that  what  may  be  a  privilege  and  im- 
munity in  one  State  must  of  necessity  be  so  in  another. 
McKane  v.  Durston,  153  TJ.  S.,  684. 

Corporations  are  not  citizens  within  the  meaning  of 
this  section. — Paul  v.  Virginia,  8  Wall.,  168 ;  Ducat  v. 
Chicago,  10  Wall.,  410;  :N^orfolk,  etc.,  K'y  Co.  v.  Penn., 
136  U.  S.,  114;  Phila.  Fire  Asso.  v.  ^ew  York,  119 
U.  S.,  110;  Pembina  Mining  Co.  v.  Penn.,  125  U.  S., 
181. 

"That  invisible,  intangible,  artificial  being,  that  mere 
legal  entity,  a  corporation  aggregate,  can  not  sue  or  be 
sued  in  the  courts  of  the  United  States,  unless  the  rights 
of  members  in  this  respect  can  be  exercised  in  their  cor- 
porate name."  Bank  of  U.  S.  v.  Deveaux,  5  Cranch, 
61,  86. 

An  averment  that  the  defendant  is  a  natural  citizen 
of  the  United  States,  and  resides  in  Louisiana,  and  that 
the  plaintiff  is  a  citizen  of  France,  is  sufficient  to  give 
jurisdiction  to  a  Circuit  court.  Gassies  v.  Ballon,  6 
Pet,  761. 

A'  corporation  can  not  act  outside  the  State  of  its  cre- 
ation, but  by  the  permission  of  the  State  or  county 
where  it  seeks  to  act.  Bank  of  Augusta  v.  Earle,  13 
Pet,  519 ;  Liverpool  Ins.  Co.  v.  Mass.,  10  Wall.,  566. 


Sec.  2.]  FUGITIVES   FROM   JUSTICE.  261 

DELIVERY  OF  FUGITIVES  FROM  JUSTICE. 

Section  2,  Art.  IV.  "A  person  charged  in  any  State 
with  treason,  felony,  or  other  crime,  who  shall  flee  from 
justice,  and  be  found  in  another  State,  shall,  on  demand  of 
the  executive  authority  of  the  State  from  which  he  fled, 
be  delivered  up,  to  be  removed  to  the  State  having  juris- 
diction of  the  crime.'* 

This  clause  of  the  Constitution  was  intended  to  in- 
clude any  offense  against  the  law  of  the  State  in  which 
it  was  committed.  The  right  is  absolute  and  the  duty 
correlative;  but  it  is  not  within  the  power  of  Congress 
nor  the  executive  or  judicial  department  to  compel  its 
enforcement.  The  duty  rests  solely  on  the  honor  and 
good  faith  of  the  States.  Kentucky  v.  Dennison,  Gov- 
ernor of  Ohio,  24  How.,  6Q ;  Ex  parte  Reggel,  114  U.  S., 
642 ;  Lascelles  v.  Georgia,  148  U.  S.,  537. 

Congress  by  the  Act  of  February  12th,  1793  (1  Stat. 
at  L.,  392,  c.  7),  provided  the  method  by  which  this 
provision  could  be  carried  into  execution ;  and  declares 
that,  on  due  evidence,  the  nature  of  which  is  described, 
^*It  shall  be  the  duty"  of  the  executive  to  whom  demand 
is  made  to  give  up  the  fugitive.  These  words  are  not 
mandatory  but  merely  give  expression  to  the  moral  ob- 
ligation of  the  executive  of  the  State  to  obey  the  Con- 
stitution on  the  subject.     Id. 

The  prisoner  Was  indicted  on  two  indictments  "for 


262  CONSTITUTION  OF  UNITED  STATES.      [Art.  IV, 

being  a  common  cheat  and  swindler"  in  Georgia.  Eeq- 
uisition  was  made  for  his  person  on  the  governor  of 
'New  York,  for  the  crime  charged  in  such  two  indict- 
ments. When  delivered  up,  he  was  before  trial  upon 
those  indictments,  tried  and  convicted  of  forgery.  He 
moved  to  quash  the  indictment  on  the  ground  that  the 
offense  charged  in  it  was  not  the  same  for  which  he  had 
been  extradited  from  the  State  of  'New  York.  Held, 
that  there  was  nothing  in  the  Constitution  of  the  United 
States  to  prevent  such  trial ;  that  there  was  between  the 
States  no  right  of  asylum  in  the  international  sense. 
Lascelles  v.  Georgia,  148  U.  S.,  537. 

Under  extradition  treaties  with  foreign  States  (R.  S., 
Sees.  5272,  5275)  extradition  must  be  negotiated 
through  the  Federal  government ;  and  under  the  treaty 
with  England,  a  person  can,  when  extradited,  be  tried 
only  on  the  offense  charged  in  the  extradition  papers. 
United  States  v.  Eauscher,  119  U.  S.,  407. 

Holmes  was  arrested  in  Vermont  on  a  warrant  or  or- 
der issued  by  Governor  Jennison  of  that  State,  directed 
to  the  sheriff  of  a  county  of  Vermont  setting  forth  that 
an  indictment  had  been  found  in  Quebec,  Lower  Can- 
ada, for  murder,  and  commanding  the  sheriff  to  arrest 
Holmes,  convey  his  body  to  some  place  on  the  border 
and  there  deliver  him  to  the  Canadian  authority  which 
might  be  there  to  receive  him.  A  writ  of  habeas  corpus 
was  sued  out  of  the  Supreme  Court  of  Vermont,  and  on 
the  hearing  the  court  held  the  imprisonment  lawful. 


Sec.  2.]  FUGITIVE  SLAVES,  ETC.  263 

The  Supreme  Court  of  tlie  United  States  was  of  the 
opinion  that  the  State  of  Vermont  had  no  right  to  sur- 
render the  prisoner  to  a  foreign  State.  Yet  the  majority 
of  the  court  decided  that  the  Supreme  Court  had  no 
jurisdiction  and  dismissed  the  writ  of  error.  Hohnes 
V.  Jennison,  14  Pet.,  540. 

FUGITIVE  SLAVES^  ETC. 

"No  person  held  to  service  or  labor  in  one  State,  under 
the  laws  thereof,  escaping  into  another,  shall,  in  conse- 
quence of  any  law  or  regulation  therein,  be  discharged 
from  such  service  or  labor,  but  shall  be  delivered  up  on 
claim  of  the  party  to  whom  such  service  or  labor  may  be 
due." 

The  Constitution  (as  originally  adopted)  clothes  the 
owner  of  a  slave  with  entire  authority  to  seize  and  re- 
capture his  slave  in  any  State  of  the  Union,  whenever 
he  can  do  so  without  any  breach  of  the  peace  or  illegal 
violence.     Prigg  v.  Penn.,  16  Pet.,  539. 

An  act  of  the  State  of  Pennsylvania  made  it  criminal 
to  "take  and  carry  away,  or  cause  to  be  taken  and  car- 
ried away,"  or  by  fraud  or  false  pretense  "seduce  or 
cause  to  be  seduced,"  or  to  "attempt  to  take,  carry  away, 
or  seduce  any  negro  or  mulatto  from  any  part  or  parts 
of  this  commonwealth  to  any  other  place  or  places  what- 
soever, out  of  this  commonwealth,  with  a  design  and  in- 
tention of  selling  and  disposing  of,  or  of  keeping  and 


264  COIs^STITUTION  OF  UNITED  STATES.       [Art.  IV, 

detaining  or  of  causing  to  be  kept  or  detained,  such, 
negro,  or  mulatto  as  a  slave  or  servant  for  life  or  for 
any  term  whatsoever;  every  such  person  or  persons  or 
abettors''  were  punishable.  This  act  held  repugnant 
to  the  Constitution.     Id. 

The  last  clause  of  the  second  section  of  the  fourth 
article  confers  on  Congress  the  exclusive  power  to  legis- 
late concerning  the  extradition  of  fugitive  slaves.     Id. 

The  fugitive  slave  act  of  1793  (1  Stats,  at  L.,  308) 
held  constitutional.  Id. ;  Jones  v.  Van  Zandt,  5  How., 
215. 

A  State  law  which  makes  it  a  crime  to  harbor  a  fugi- 
tive slave  is  not  in  conflict  with  the  Constitution.  The 
act  of  harboring  may  be  an  offense  both  against  the  State 
law  and  the  laws  of  the  United  States.  Moore  v.  Illi- 
jiois,  14  How.,  13. 

The  question  whether  slaves  held  in  a  slave  State  are 
made  free  by  going  into  a  free  State  with  the  permis- 
sion of  their  masters  is  purely  a  question  of  local  law, 
over  which  the  Supreme  Court  had  no  jurisdiction,  un- 
der the  Constitution,  before  the  amendments  abolishing 
slavery.     Strader  v.  Graham,  10  How.,  82. 

The  ordinance  of  1787  ceased  to  be  of  force  after  the 
adoption  of  the  Constitution.     Id. 

Persons,  whose  ancestors  were  negroes  of  the  African 
race  imported  into  this  country  and  held  as  slaves,  can 
not  though  emancipated  or  born  of  free  parents,  become 
citizens  of  the  United  States,  in  the  sense  in  which  that 


Sec.  2.]  FUGITIVE  SLAVES,  ETC.  265 

word  is  used  in  the  Constitution  as  originally  adoj)ted. 
Dred  Scott  v.  Sandford,  19  How.,  393.  And  they  can 
not  sue  as  such  citizens  in  a  Federal  court.     Id. 

The  carrying  of  a  person  held  as  a  slave  into  terri- 
tory of  the  United  States  ceded  to  it  by  France  did  not 
divest  the  owner  of  his  property  in  such  slave. 

The  Act  of  Congress  of  March  6,  1820  (3  Stat,  at  L., 
1545),  commonly  called  "the  Missouri  Compromise," 
held  unconstitutional  and  void  as  it  forbade  slavery  in 
a  portion  of  the  territory  of  the  United  States  and  in- 
terfered with  the  right  of  the  slave  owner  to  go  there 
carrying  his  slave  property  with  him.     Id. 

The  fugitive  slave  law  of  Sept.  18,  1850  (9  Stat,  at 
L.,  p.  462),  held  valid.  Exclusive  jurisdiction  of  of- 
fenses against  that  act  was  vested  in  the  district  courts 
of  the  United  States,  and  State  courts  or  judges  have  no 
jurisdiction  nor  power  to  discharge  on  writ  of  habeas 
corpus  any  person  arrested  by  United  States  authority 
and  committed  by  a  United  States  commissioner.  To 
discharge  such  person  when  it  is  made  known  to  the 
court  or  judge  issuing  the  writ,  is  to  violate  the  laws  and 
Constitution  of  the  United  States.  Ableman  v.  Booth, 
21  How.,  506. 

The  guaranty  of  trial  by  jury  was  intended  for  a 
state  of  war  as  well  as  peace ;  and  Congress  can  not  in- 
vest a  military  commission  in  a  State  not  invaded  nor 
engaged  in  rebellion  to  try,  convict  and  sentence  for  any 
criminal  offenses,  a  person  who  was  neither  a  prisoner 


266  CONSTITUTION  OF  UNITED  STATES.       [Art.  IV, 

of  war  nor  a  citizen  of  a  State  in  rebellion.  Ex  'parte 
Milligan,  4  WalL^  1.  Such  person  is  entitled  to  trial 
by  jury.     Id. 

The  provision  that  trials  shall  be  held  in  the  State 
where  the  crime  shall  have  been  committed,  has  refer- 
ence to  trials  in  United  States  courts  and  not  to  trials  in 
State  courts.  IN'ashville,  etc.,  E'y  Co.  v.  Alabama,  128 
IT.  S.,  96. 

PORMATION  AND  ADMISSION  OF  STATES  INTO  THE  UNION. 

Section  3,  Article  IY.  "New  States  may  be  ad- 
mitted by  the  Congress  into  this  Union;  but  no  new  State 
shall  be  formed  or  erected  within  the  jurisdiction  of  any 
other  State;  nor  any  State  be  formed  by  the  junction  of 
two  or  more  States,  or  parts  of  States,  without  the  consent 
of  the  legislatures  of  the  States  concerned  as  well  as  of  the 
Congress." 

Rights  of  State  when  admitted. — The  State  of  Ala- 
bama, when  admitted  into  the  Union,  became  entitled  to 
the  soil  under  the  navigable  waters  of  the  State  not  pre- 
viously granted  away.  Pollard's  Lessee  v.  Hagan,  3 
How.,  212.  And  Congress  could  not  afterwards  grant 
them  away.     Id. 

The  new  States  admitted  into  the  Union  since  the 
adoption  of  the  Constitution  have  the  same  rights  as  the 
original  States  in  the  tide  waters  and  lands  under  them 
within  their  respective  jurisdictions.  Shively  v.  Bowl- 
by,  152  U.  S.,  48. 


Sec.  3.]  ABMISSIOI^  OF  STATES.  267 

The  lands  and  the  tide  waters  within  the  State 
limits  passed  to  the  State  upon  its  admission  with  the 
consequent  right  to  dispose  of  the  title  as  the  State 
might  think  proper,  subject  only  to  the  paramount  right 
of  navigation  over  the  waters  as  the  necessities  of  com- 
merce might  require.  Weber  v.  Board  of  Harbor  Com- 
missioners, 18  Wall.,  57. 

The  admission  of  a  State  on  an  equal  footing  with 
the  original  States  in  all  respects,  works  collectively  the 
naturalization  of  all  those  who  had  declared  their  in- 
tentions, and  who  had  been  members  of  the  political 
community  and  were  recognized  as  such  at  the  time  of 
the  admission.     Boyd  v.  ISTebraska,  143  U.  S.,  135. 

Upon  the  admission  of  Illinois  into  the  Union  the 
State  became  entitled  to  all  the  rights  of  dominion  of 
the  original  States  and  could  afterwards  exercise  the* 
same  powers  over  rivers  within  her  limits  as  Delaware 
exercised  over  Blackbird  Creek,  and  Pennsylvania  over 
Schuylkill  river.  Escanaba  Co.  v.  Chicago,  107  U.  S., 
678 ;  Huse  v.  Glover,  119  U.  S.,  543,  546 ;  Hamilton  v. 
Vicksburg,  etc.,  K'y  Co.,  119  U.  S.,  280,  285. 

The  provision  in  the  act  admitting  California  into 
the  Union  ^^that  all  the  navigable  rivers  within  the  said 
State  shall  be  common  highways  and  forever  free,  as 
well  to  the  inhabitants  of  said  State  as  to  the  citizens  of 
the  United  States,  without  any  tax,  impost  or  duty, 
therefor,"  does  not  deprive  the  State  of  the  power  pos- 
sessed by  other  States,  in  the  absence  of  legislation  by^ 


268  CONSTITUTION  OF  UNITED  STATES.       [Art.  lY, 

Congress,  to  authorize  the  erection  of  bridges  over  navi- 
gable streams  within  the  State.  Card  well  v.  Am. 
Bridge  Co.,  113  U.  S.,  205. 

The  power  to  admit  new  States  includes  the  power 
tp  acquire  territory  to  be  admitted  as  a  State,  and  to 
maintain  a  government  there  until  the  territory  is  ripe  "a 
for  admission.     Dred  Scott  v.  Sandford,  19  How.,  393. 

On  the  admission  of  a  State  into  the  Union  uncondi- 
tionally, the  territorial  government  is  abrogated,  every 
part  of  it,  and  no  power  of  jurisdiction  remains  except 
that  derived  from  State  authority,  and  that  by  force  and 
operation  of  the  Federal  Constitution  and  laws.  Ben- 
ner  v.  Porter,  9  How.,  235;  MclS'ulty  v.  Batty,  10 
How.,  72. 

Territorial  'property  passes  to  State  on  admission. — 
A  statute  of  the  territory  of  Colorado  authorized  a 
board  of  managers  to  receive  a  conveyance  of  a  site  in 
Denver  for  the  capitol  of  the  territory.  A  conveyed  by 
warranty  deed  a  tract  for  such  site  to  such  board  "for 
the  purpose  of  erecting  a  capitol  and  other  buildings 
thereon  only."  The  territory  made  no  use  of  the  land 
before  the  admission  of  Colorado  into  the  Union.  After 
its  admission,  A  executed  and  put  on  record  an  instru- 
ment attempting  to  annul  the  gift  and  took  and  was  in 
possession  of  the  land  when  he  brought  the  suit  in  equity 
praying  that  the  board  and  State  officers  be  enjoined 
from  disturbing  his  possession  until  he  should  receive 
just  compensation.     Held,  he  could  not  maintain  suit. 


Sec.  3.]  POWER  OVER  TERRITORIES.  269 

as  all  the  property  of  the  territory  passed  to  the  State  j 
and  the  State,  as  the  case  showed,  was  about  to  construct 
buildings  on  the  land.     Brown  v.  Grant,  116  U.  S.,  207. 


"The  Congress  shall  have  power  to  dispose  of  and  make 
all  needful  rules  and  regulations  respecting  the  territory 
or  other  property  belonging  to  the  United  States;  and 
nothing  in  this  Constitution  shall  be  so  construed  as  to 
prejudice  any  claims  of  the  United  States,  or  of  any  par- 
ticular State.'' 

The  power  to  acquire  and  govern  territories. — "The 
Constitution  confers  absolutely  on  the  government  of 
the  Union  the  powers  of  making  war  and  of  makings 
treaties;  consequently  that  government  possesses  the 
power  of  acquiring  territory,  either  by  conquest  or  by 
treaty."  Ch.  J.  Marshall  in  Am.  Ins.  Co.  v.  Canter,  1 
Pet.,  511,  542. 

Under  the  power  of  the  general  government  to  govern 
the  territories,  Congress  exercises  the  combined  powers 
of  the  Federal  and  State  governments  and  may  legislate 
directly  for  a  territory,  although  the  organic  act  con- 
tains no  reservation  of  such  power.     Id. 

"Perhaps  the  power  of  governing  a  territory  belong- 
ing to  the  United  States,  which  has  not,  by  becoming  a 
State,  acquired  the  means  of  self-government,  may  result 
necessarily  from  the  facts  that  it  is  not  within  the  power 


t 


270  CONSTITUTIOIS'  OF  UI^ITED  STATES.       [Art.  IV, 

and  jurisdiction  of  any  particular  State,  and  is  witbin 
the  power  and  jurisdiction  of  the  United  States.  The 
right  to  govern  may  be  the  inevitable  consequence  of  the 
right  to  acquire  territory.  Which  ever  may  be  the 
source  whence  the  power  is  derived,  the  possession  of  it 
is  unquestioned.'^     Id. 

(1)  The  power  of  Congress  over  the  territory  is  gen- 
eral and  plenary,  arising  from  the  right  to  acquire 
them ;  which  right  arises  from  the  power  of  the  govern- 
ment to  declare  war  and  make  treaties  of  peace,  and  also, 
in  part  arising  from  the  power  to  make  all  needful  rules 
and  regulations  respecting  the  territory  and  other  prop-  ^ 
erty  of  the  United  States. 

(2)  This  plenary  power  extends  to  the  acts  of  the 
legislatures  of  the  territories  and  is  usually  expressed 
in  the  organic  acts  of  each  by  an  express  reservation  of 
the  right  to  disapprove  and  annul  the  acts  of  the  legis- 
lature thereof. 

(3)  Congress  has  the  power  to  repeal  the  act  of  in- 
corporation of  the  Mormon  Church,  by  virtue  of  its  gen- 
eral power  and,  also,  its  reserved  right  in  the  organic  act 
of  the  Territory  of  Utah.  Mormon  Church  v.  United 
States,  136  U.  S.,  1. 

Subject  to  the  limitations  expressly  or  by  implication 
imposed  by  the  Constitution,  the  Congress  has  full  and 
complete  authority  over  a  territory  and  may  directlj^ 
legislate  for  its  government,  and  may  nullify  its  enact- 
ments.    The  act  organizing   a  territory  is  its   funda- 


Sec.  3.]  POWEE  OVER  TERRITORIES.  271 

mental  law  and  binding  upon  the  territorial  authorities. 
ISTat.  B'k  V.  Yankton  Co.,  101  U.  S.,  129. 

"Doubtless  Congress,  in  legislating  for  the  territories, 
would  be  subject  to  those  fundamental  limitations  in 
favor  of  personal  rights,  which  are  formulated  in  the 
Constitution,  but  these  limitations  would  exist  by  infer- 
ence and  the  general  spirit  of  the  Constitution  from 
which  Congress  derives  its  powers  rather  than  by  any  ex- 
press and  direct  application  of  its  provisions. '^  Mormon 
Church  V.  United  States,  136  U.  S.,  44. 

The  personal  and  civil  rights  of  the  inhabitants  of  the 
territories  are  secured  to  them  as  to  other  citizens,  by  the 
principles  of  constitutional  liberty  which  restrain  all  the 
agencies  of  government.  State  and  national ;  their  polit- 
ical rights  are  franchises  which  they  hold  as  priviliges 
in  the  legislative  discretion  of  Congress.  Murphy  v. 
Eamsey,  114  U.  S.,  44.  The  people  of  the  United 
States,  as  sovereign  owners,  have  supreme  power  over 
the  territories. 

In  the  exercise  of  this  sovereign  dominion,  they  are 
represented  by  the  government  of  the  United  States,  to 
whom  all  the  powers  of  government  over  that  subject 
have  been  delegated,  subject  only  to  such  restrictions  as 
are  expressed  in  the  Constitution  or  are  necessarily  im- 
plied in  its  terms,  or  in  the  purposes  and  object  of  the 
power  itself ;  for  it  may  well  be  admitted  in  respect  to 
this,  as  to  every  other  power  of  society  over  its  members, 
that  it  is  not  absolute  and  unlimited.  Murphy  v.  Ram- 
sey, 114  U.  S.,  44. 


272  CONSTITUTION  or  united  states.     [Art.  IV,. 

"The  power  to  make  all  needful  rules  and  regulations 
respecting  the  territory  or  other  property  belonging  to 
the  United  States  is  not  more  comprehensive  than  the 
power  to  make  all  laws  which  shall  he  necessary  and 
proper  for  carrying  into  execution''  the  power  of  the 
government.  Yet  all  admit  the  constitutionality  of  ter- 
ritorial government  which  is  a  corporate  body.  M'Cul- 
loch  V.  Maryland,  4  Wheat.,  316,  422. 

The  Dred  Scott  decision. — The  clause  in  the  Consti- 
tution authorizing  Congress  to  make  all  needful  rules 
and  regulations  respecting  the  territory  and  other  prop- 
erty of  the  United  States,  applies  only  to  territory 
within  the  chartered  limits  of  some  of  the  States  when 
they  were  colonies  of  Great  Britain,  and  which  was  sur- 
rendered by  the  British  government  to  the  old  confedera- 
tion in  the  treaty  of  peace,  but  has  no  application  to  ter- 
ritory acquired  by  the  present  Federal  government^v 
Dred  Scott  v.  Sandford,  19  How.,  393. 

In  the  territory  acquired  by  the  people  of  the  United 
States  for  their  common  benefit.  Congress  can  not  pro- 
hibit the  citizen  of  any  particular  State  from  going 
there  and  taking  up  his  home,  while  it  permits  citizens 
of  other  States  to  go  there ;  and  each  may  take  his  prop- 
erty there,  and  as  the  Constitution  recognizes  property 
in  slaves,  the  slave  owner  may  take  his  property  there 
and  hold  it,  the  same  as  the  owner  of  other  chattels  can 
take  them  there.  Congress  can  not  prohibit  this.  Dred 
Scott  V.  Sandford,  19  How.,  393. 

The  United  States,  under  the  present  Constitution,  ^  *^ 


Sec.  3.]  POWER  OVER  TERRITORIES.  273 

can  not  acquire  territory  to  be  lield  as  a  colony,  to  be 
governed  at  its  will  and  pleasure.  But  it  may  acquire 
territory  which,  at  the  time,  has  not  a  population  that  fitd 
it  to  become  a  State,  and  may  govern  it  as  a  territory^ 
until  it  has  a  population  which  in  the  judgment  of  Con* 
gress  entitles  it  to  be  admitted  as  a  State  into  the  Union. 
Dred  Scott  v.  Sandford,  19  How.,  393. 

Power  over  territories. — Upon  the  acquisition  of  a 
territory  by  the  United  States,  by  treaty,  cession  f roia 
the  States,  a  discovery  and  settlement,  the  same  title  an(J 
dominion  passes  to  the  United  States  for  the  benefit  o£ 
the  whole  people  and  in  trust  for  the  States  to  be  ulti- 
mately created  out  of  the  territory.  Shively  v.  Bowlby,  ► 
152  U.  S.,  48. 

By  the  treaty  of  March  14th,  1855,  between  the 
United  States  and  the  Cherokee  nation  certain  lands 
were  ceded  to  them,  and  it  was  provided  that  the  lands 
ceded  "shall  in  no  future  time  be  included  within  the 
territorial  limits  or  jurisdiction  of  any  State  or  terri- 
tory. But  they  shall  secure  to  the  Cherokee  nation  the 
right  of  their  national  councils  to  make  and  carry  into 
effect  all  such  laws  as  they  may  deem  necessary  for  the 
government  and  protection  of  persons  and  property 
within  their  own  country  belonging  to  their  people,  or 
such  persons  as  have  connected  themselves  with  them; 
provided,  always,  that  they  shall  not  be  inconsistent  with 
the  Constitution  of  the  United  State  and  such  acts  of 

Congress  as  have  been  or  may  be  passed,   regulating 
18 


274  CONSTITUTION  OF  UNITED  STATES.       [Art.  IV, 

trade  and  intercourse  with  the  Indians,"  etc.  Held, 
that  the  Cherokee  nation  are  so  far  under  the  protection 
of  the  laws  of  the  United  States,  as  a  State  or  territory, 
for  the  purpose  of  suing  in  the  District  of  Columbia,  on 
an  administrator's  bond.  Mackey  v.  Coxe,  18  How., 
100. 

A  person  appointed  by  the  President,  by  and  with  the 
consent  of  the  Senate  to  be  the  judge  of  the  district  court 
of  Alaska,  under  the  provisions  of  the  act  of  May  17th, 
1884  (23  Stat.  24,  c.  53,  Sec.  3),  is  not  a  judge  of  the 
courts  of  the  United  States  within  the  meaning  of  the 
tenure  of  office  act.  K.  S.  U.  S.,  Sec.  1768 ;  McAllis- 
ter V.  United  States,  141  U.  S.,  174. 

Under  the  provision  as  to  the  trial  of  offenses  com- 
mitted within  the  jurisdiction  of  the  United  States  and 
out  of  the  jurisdiction  of  any  particular  State,  the  ac- 
cused was  tried  in  Maryland  for  a  murder  committed 
on  Mavassa  island,  a  small  island  in  the  Carribean  sea, 
over  which  the  United  States  had  exercised  jurisdiction 
since  1859,  it  being  occupied  by  an  American  company, 
for  its  phosphates  or  guano  deposits.  Jones  v.  United 
States,  137  U.  S.,  202. 

In  1815  Congress  levied  a  direct  tax  on  the  States. 
By  a  later  act,  of  the  same  session,  a  direct  tax  was  also 
levied  upon  the  District  of  Columbia.  This  tax  was 
held  valid,  as  Congress  has  power  to  lay  and  collect 
taxes,  duties,  imposts  and  excises.  In  the  course  of  the 
opinion  Chief  Justice  Marshall  uses  these  words :  "This 


Sec.  3.]  POWER   OVER   TERRITORIES.  275 

grant  (of  power  to  lay  and  collect  taxes,  etc.)  is  general, 
without  limitation  as  to  place.  It,  consequently,  extefnds 
to  all  places  over  which  the  government  extends.  If  this 
could  be  doubted,  the  doubt  is  removed  by  the  subse- 
quent words  which  modify  the  grant.  These  words  are, 
'But  all  duties,  imposts,  and  excises,  shall  be  uniform 
throughout  the  United  States.'  It  will  not  be  contended 
that  the  modification  of  the  power  extends  to  places  to 
which  the  power  itself  does  not  extend.  The  power 
then  to  lay  and  collect  duties,  imposts,  and  excises  may 
be  exercised,  and  must  be  exercised  throughout  the 
United  States.  Does  this  term  designate  the  whole,  or 
any  portion  of  the  American  empire  ?  Certainly,  this 
question  can  admit  of  but  one  answer.  It  is  the  name 
given  to  our  great  republic,  which  is  composed  of  States 
and  territories.  The  District  of  Columbia,  or  the  ter- 
ritories west  of  the  Mississippi,  is  not  less  within  the 
United  States  than  Maryland  or  Pennsylvania;  and  it 
is  not  less  necessary,  on  the  principles  of  our  Constitu- 
tion, that  uniformity  in  the  imposition  of  imposts,  du- 
ties and  excises,  should  be  observed  in  the  one,  than  in 
the  other."  But  it  was  held  that  as  Congress  had  power 
of  exercising  exclusive  legislation  in  all  cases  whatso- 
ever, it  had  the  power  to  lay  direct  taxes  on  the  basis 
of  population.  Loughborough  v.  Blake,  5  Wheat.,  317. 
The  courts  held  in  the  territories  by  judges  appointed 
by  the  President  are  not  courts  of  the  United  States,  'but 
are  merely  legislative  courts  created  by  virtue  of  the 


276  CONSTITUTION  OF  UNITED  STATES.      [Art.  IV, 

clause  which  authorizes  Congress  to  make  all  needful 
rules  and  regulations  respecting  the  territory,  etc. 
Clinton  v.  Englebrecht,  13  Wall.,  434. 

The  theory  upon  which  the  various  governments  for 
portions  of  the  territory  of  the  United  States  have  been 
organized  has  ever  been  that  of  leaving  to  the  inhabit- 
ants all  the  powers  of  self-government  consistent  with 
the  supremacy  and  supervision  of  national  authority, 
and  with  certain  fundamental  principles  established  by 
Congress.     Clinton  v.  Englebrecht,  13  Wall.,  434,  441. 

The  right  of  the  people  of  the  territories  to  trial  hy 
jury. — In  a  criminal  prosecution  in  the  District  of  Col- 
umbia the  accused  claimed  the  right  of  trial  by  jury. 
In  this  case,  the  Court  says :  "As  the  guaranty  of 
a  trial  by  jury,  in  the  third  article,  implied  a  trial 
in  that  mode  and  according  to  the  settled  rules  of 
the  common  law,  the  enumeration  in  the  Sixth  Amend- 
ment of  the  rights  of  the  accused  in  criminal  prosecu- 
tions is  to  be  taken  as  a  declaration  of  what  these  rules 
were,  and  is  to  be  referred  to  the  anxiety  of  the  people 
of  the  States  to  have  in  the  supreme  law  of  the  land,  and 
so  far  as  the  agencies  of  the  general  government  are  con- 
cerned, a  full  and  distinct  recognition  of  those  rules,  as 
involving  the  fundamental  rights  of  life,  liberty  and 
property.  This  recognition  was  demanded  and  secured 
for  the  benefit  of  all  the  people  of  the  United  States,  as 
well  as  those  permanently  or  temporarily  residing  in  the 
District  of  Columbia  as  those  residing  or  being  in  the 


Sec.  3.]  POWER   OVER  TERRITORIES.  277 

several  States.  There  is  nothing  in  the  history  of  the 
Constitution  or  of  the  original  amendments  to  justify 
the  assertion  that  the  people  of  the  District  of  Columbia 
may  be  lawfully  deprived  of  the  benefit  of  any  of  the 
constitutional  guaranties  of  life,  liberty  and  property; 
especially  of  the  privilege  of  trial  by  jury  in  criminal 
cases.^'  ^'We  can  not  think  that  the  people  of  this  dis- 
trict have  in  that  regard  less  rights  than  those  accorded 
to  the  people  of  the  territories  of  the  United  States." 
Callan  v.  Wilson,  127  U.  S.,  540,  549,  550 ;  Thompson 
V.  Utah,  170  U.  S.,  343. 

An  act  of  the  territory  of  Iowa  dispensing  with  a  jury 
in  a  certain  class  of  cases  was  held  contrary  to  the  7th 
Amendment,  and  void,  the  Constitution  having  been  ex- 
tended to  the  territory  by  statute  of  Congress.  Web- 
ster V.  Eeid,  11  How.,  437. 

The  statute  of  Utah,  while  a  territory,  which  provided 
that  "in  all  civil  cases  a  verdict  may  be  rendered  on  the 
concurrence  therein  of  nine  or  more  members,"  is 
valid ;  if  not  so  under  the  7th  Amendment  to  the  Con- 
stitution it  is  so  as  violating  the  provisions  of  the  act  of 
Sept.  9,  1850,  c.  51,  admitting  Utah  as  a  territory  and 
extending  the  Constitution  there  so  far  as  applicable. 
Am.  Pub.  Co.  V.  Fisher,  166  U.  S.,  464;  Springville  v. 
Thomas,  166  U.  S.,  707.  It  is  intimated  that  Congress 
could  not  deprive  one  of  this  common-law  right  even  in 
a  territory.     Id. ;  Thompson  v.  Utah,  170  U.  S.,  343. 

Where  the  country  occupied  by  one  of  the  Indian 


278  CONSTITUTION  OF  UNITED  STATES.       [Art.  IV, 

tribes  is  not  within  a  State,  Congress  may  enact  laws  to 
punish  offenses  committed  there  either  by  whites  or  In- 
dians.    U.  S.  V.  Rogers,  4  How.,  567. 

Where  a  provisional  government  had  been  erected  by 
the  President  in  California  between  the  date  of  the 
treaty  of  peace  (Feb.  3,  1848)  and  the  date  when  a  col- 
lector of  the  post  entered  upon  his  duties  and  under  such 
provisional  government  duties  had  been  exacted  upon 
imports  from  foreign  countries,  they  were  not  illegally 
exacted  and  can  not  be  recovered  back.  Cross  v.  Har- 
rison, 16  How.,  164. 

The  civil  government  so  erected  by  the  President  by 
virtue  of  the  power  of  conquest  did  not  cease  upon  the 
ratification  of  the  treaty  but  continued,  without  viola- 
tion of  the  Constitution  or  laws  of  the  United  States, 
until  Congress  provided  otherwise  by  legislation.  Id., 
195. 

The  following  clause  in  Justice  Wayne's  opinion  is 
claimed  to  have  some  significance.  He  says,  "The  as- 
sertion rather  than  argument,  ^that  there  was  neither 
treaty  nor  law  permitting  the  collection  of  duties,'  has 
been  answered,  it  having  been  shown  that  the  ratifica- 
tions of  the  treaty  made  California  a  part  of  the  United 
States,  and  that  as  soon  as  it  became  so,  the  territory  be- 
came subject  to  the  acts  which  were  in  force  to  regulate 
foreign  commerce  with  the  United  States,  after  those 
had  ceased  which  had  been  instituted  for  its  regulation 
as  a  belligerent  right."     Id.,  198. 

Power  to  sell  and  dispose  of  lands.- — The  power  of 


Sec.  4.]  GUARANTIES  TO   STATES.  279 

Congress  to  "dispose"  of  the  public  lands  is  not  limited 
to  sales,  but  it  may  lease  them.  United  States  v.  Gra- 
tiot, 14  Pet.,  526. 

The  term  territory  as  here  used  is  merely  descriptive 
of  the  one  kind  of  property  and  is  equivalent  to  the  word 
lands.  And  Congress  has  the  same  power  over  it  as  over 
any  other  property  belonging  to  the  United  States,  and 
this  power  is  vested  in  Congress  without  limitation,  and 
has  been  considered  the  foundation  upon  which  the  ter- 
ritorial governments  rest.     Id. 

GUAKANTIES  TO  STATES. 

Sectioit  4,  Article  IV.  "The  United  States  shall 
guaranty  to  every  State  in  this  Union  a  republican  form 
of  government,  and  shall  protect  each  of  them  against  in- 
vasion; and  on  application  of  the  legislature,  or  of  the 
Executive  (when  the  legislature  can  not  be  convened), 
against  domestic  violence." 

1.  This  section  provides  that  "the  United  States  shall 
guaranty  to  every  State  in  this  Union  a  republican  form 
of  government,  and  shall  protect  each  of  them  against 
invasion,"  etc. 

2.  Under  this  article  of  the  Constitution  it  rests  witH 
Congress  to  decide  what  government  is  established  in  a 
State.  For  as  the  United  States  guaranties  to  each  State 
a  republican  form  of  government.  Congress  must  neces* 
earily  decide  what  government  is  established  in  the  State 
before  it  can  determine  whether  it  is  republican  or  notl 


280  CONSTITUTION  or  united  states.     [Art.  lY, 

3.  The  decision  of  Congress  is  binding  on  every  other 
department  of  government. 

4.  Congress  may  delegate  this  power  to  the  President, 
and  when  he  decides  which  of  two  contending  and 
alleged  State  organizations  constitute  the  State  govern- 
ment, his  decision,  under  the  Act  of  Feb.  28th,  1795 
(1  Stats,  at  L.,  424),  is  conclusive  on  the  courts  of  the 
United  States.    Luther  v.  Borden,  7  How.,  33,  42. 

The  relation  of  States  to  the  Union. — (1)  When 
Texas  became  one  of  the  States  of  the  United  States, 
she  entered  into  an  indissoluble  relation.  All  the  obli- 
gations of  perpetual  union,  and  all  the  guaranties  of  re- 
publican government  in  the  Union,  attached  at  once  to 
the  State.  The  Act  which  consummated  her  admission 
into  the  Union  was  something  more  than  a  compact; 
it  was  the  incorporation  of  a  new  member  into  the  polit- 
,  ical  body.  And  it  was  final.  The  Union  between  Texas 
and  the  other  States  was  as  complete,  as  perpetual,  and 
as  indissoluble  as  the  Union  between  the  original  States. 

(2)  The  Ordinance  of  Secession  was  therefore  void, 
absolutely  null  as  a  transaction  under  the  Constitution. 

(3)  Texas,  in  legal  contemplation,  continued  to  be  a 
State  in  the  Union. 

(4)  When  Texas  attempted  to  secede  and  entered 
into  a  hostile  confederacy  and  waged  war  upon  the 
United  States  her  rights  as  a  member  of  the  Union  were 
suspended. 

(5)  These  new  relations  imposed  new  duties  on  the 


Sec.  4.]  GUAEANTIES   TO   STATES.  281 

United  States,  first,  to  suppress  the  rebellion;  second, 
to  re-establish  the  Union. 

(6)  The  authority  for  performance  of  the  second  ob- 
ligation was  derived  from  the  obligation  of  the  United 
States  to  guaranty  to  every  State  in  the  Union  a  repub- 
lican form  of  government. 

(Y)  The  power  to  carry  into  effect  the  guaranty 
•clause  is  primarily  a  legislative  power,  and  resides  in 
Congress.  For,  as  the  United  States  must  necessarily 
guaranty  to  each  State  a  republican  government,  Con- 
gress must  necessarily  decide  what  government  is  estab- 
lished in  the  State,  before  it  can  decide  whether  it  is  re- 
publican in  form,  or  not.  Texas  v.  White,  7  Wall.,  700, 
726,  730. 

The  Kentucky  election  case. — The  guaranty  of  a  re- 
publican form  of  government  to  each  State  by  Art.  IV, 
Sec.  4,  does  not  confer  on  the  Supreme  Court  of  the 
United  States  jurisdiction  to  review  the  decision  of  the 
highest  court  of  a  State  sustaining  the  determination  of 
a  canvassing  board  or  tribunal  created  under  the  State 
Constitution.  It  does  not  deny  the  right  of  the  people 
to  choose  their  own  officers.  Taylor  v.  Beckham,  178 
U.  S.,  548. 

Justice  Brewer  with  Brown  dissented  from  the  view 
that  the  court  had  no  jurisdiction  but  held  that  the  de- 
cision of  the  Kentucky  court  should  be  affirmed.  He 
cited  the  cases  of  Kennard  v.  Louisiana,  92  U.  S.,  480 ; 
Foster  v.  Kansas,  112  U.  S.,  201,  and  Boyd  v.  Nebraska, 


282  CONSTITUTIOI^  OF  UNITED  STATES.        [Art.  V* 

143  IT.  S.,  135,  as  instances  where  the  court  had  enter- 
tained jurisdiction,  to  inquire  whether  one  had  been  de- 
prived of  office  without  due  process  of  law.     Id. 


AETICLE  V. 

AMENDMENT  OF  CONSTITUTION. 

"The  Congress,  whenever  two-thirds  of  both  houses 
shall  deem  it  necessary,  shall  propose  amendments  ta 
this  Constitution,  or,  on  the  application  of  the  legisla- 
tures of  two-thirds  of  the  several  States,  shall  call 
a  convention  for  proposing  amendments,  which,  in  either 
case,  shall  he  valid  to  all  intents  and  purposes,  as  part  of 
this  Constitution,  when  ratified  by  the  legislatures  of 
three-fourths  of  the  several  States,  or  by  conventions  in 
three-fourths  thereof,  as  the  one  or  the  other  mode  of  rati- 
fication may  be  proposed  by  the  Congress;  provided,  that 
no  amendment  which  may  be  made  prior  to  the  year  one 
thousand  eight  hundred  and  eight  shall  in  any  manner 
affect  the  first  and  fourth  clauses  in  the  ninth  section  of 
the  first  article;  and  that  no  State,  without  its  consent, 
shall  be  deprived  of  its  equal  suffrage  in  the  Senate." 

As  to  the  date  of  ratification  of  each  of  the  amend- 
ments to  the  Constitution,  see  post,  p.  386. 


Art.  VL]  CONSTITUTION   SUPREME,   ETC.  28S 

AKTICLE  VI. 

PUBLIC  DEBTS CONSTITUTION,  ETC.,  SUPREME. 

"All  debts  contracted  and  engagements  entered  into, 
before  the  adoption  of  this  Constitution,  shall  be  as  valid 
against  the  United  States  under  this  Constitution  as  under 
the  Confederation. 

"This  Constitution,  and  the  laws  of  the  United  States 
which  shall  be  made  in  pursuance  thereof,  and  all  treaties 
made,  or  which  shall  be  made,  under  the  authority  of  the 
United  States,  shall  be  the  supreme  law  of  the  land ;  and 
the  judges  in  every  State  shall  be  bound  thereby,  anything 
in  the  Constitution  or  laws  of  any  State  to  the  contrary 
notwithstanding. 

"The  Senators  and  Representatives  before  mentioned,  and 
the  members  of  the  several  State  legislatures,  and  all  ex- 
ecutive and  judicial  officers,  both  of  the  United  States 
and  of  the  several  States,  shall  be  bound  by  oath  or  af- 
firmation to  support  this  Constitution;  but  no  religious 
test  shall  ever  be  required  as  a  qualification  to  any  office  or 
public  trust  under  the  United  States." 

Acts  of  Congress  prevail  over  State  laws,  etc. — ^When 
a  State  statute  and  a  Federal  statute  operate  upon  the 
same  subject  matter  and  prescribe  different  rules,  and 
the  Federal  statute  is  one  that  Congress  can  pass  the 
State  statute  must  give  way.  Gulf,  etc.,  Wj  Co.  v.  Hef- 
ley,  158  U.  S.,  98. 


284  CONSTITUTIO]^  OF  UNITED  STATES.       [Art.  YL 

A  law  of  Maryland,  imposing  a  tax  on  a  branch  of  the 
United  States  Bank,  held  invalid.  M'CuUoch  v.  Mary- 
land, 4  Wheat.,  316.  "The  government  of  the  Union, 
though  limited  in  its  powers,  is  supreme  within  its 
sphere  of  action.  This  would  seem  to  result  necessarily 
from  its  nature.  It  is  the  government  of  all ;  its  powers 
are  delegated  by  all;  it  represents  all,  and  acts  for  all. 
The  nation,  on  those  subjects  on  which  it  can  act,  must 
necessarily  bind  its  component  parts.  But  this  ques- 
tion is  not  left  to  mere  reason ;  the  people  have,  in  ex- 
press terms,  declared  it  by  saying,  "this  Constitution 
and  the  laws  of  the  United  States  which  shall  be  made  in 
pursuance  thereof,  shall  be  the  supreme  law  of  the 
land."     Id.,  405,  406. 

The  States  must  conform  to  the  decisions  of  the  Su- 
preme Court  of  the  United  States  as  to  the  unconsti- 
tutionality of  an  act.    Cook  v.  Moffat,  5  How.,  295,  405. 

The  act  of  Congress  of  Feb.  17th,  1793,  providing 
for  the  enrollment  and  license  of  persons  engaged  in  the 
coasting  trade  is  the  supreme  law  of  the  land.  Sinnot 
V.  Com'rs,  etc.,  of  Mobile,  22  How.,  227.  The  act  of 
the  Alabama  legislature  requiring  vessels  in  such  trade 
to  register  at  a  State  office,  under  penalty,  is  void.  Id. 
Foster  v.  Same,  22  How.,  244. 

The  government  of  the  United  States  has  jurisdic- 
tion over  every  foot  of  its  soil  and  acts  directly  upon 
-each  citizen.     In  re  Debs,  158  U.  S.,  564. 

When  courts  give  effect  to  treaties, — A  treaty  is  pri- 


Art.  VI.]  CONSTITUTION  SUPKEME,  ETC.  285 

marily  a  compact  between  independent  nations.  It  de- 
pends for  the  enforcement  of  its  provisions  on  the  in- 
terest and  honor  of  the  governments  which  are  parties 
to  it.  If  these  fail,  its  infraction  becomes  the  subject 
of  international  negotiations  and  reclamations  so  far  as 
the  injured  party  chooses  to  seek  redress,  which  may  in 
the  end  be  enforced  by  actual  war.  It  is  obvious  that 
with  all  this  the  courts  have  nothing  to  do  and  ca,n  give 
no  redress.  But  a  treaty  may  also  contain  provisions 
which  confer  certain  rights  upon  the  citizens  or  subjects 
of  one  of  the  nations  residing  in  the  territorial  limits  of 
the  other,  which  partake  of  the  nature  of  municipal  law, 
and  are  capable  of  enforcement  as  between  the  parties 
in  the  courts  of  the  country.  Ex  'parte  Cooper,  143 
U.  S.,  472,  501. 

When  a  question  is  pending  between  the  government 
of  the  United  States  and  a  foreign  power  and  negotia- 
tions are  still  going  on,  the  courts  should  not  interfere  by 
process  to  determine  whether  the  government  was  right 
or  wrong.     Ex  parte  Cooper,  143  U.  S.,  472. 

Upon  the  State  courts,  equally  with  the  courts  of  the 
Union,  rests  the  obligation  to  guard,  enforce  and  protect 
every  right  granted  or  secured  by  the  Constitution  of 
the  United  States  and  the  laws  made  in  pursuance 
thereof,  whenever  those  rights  are  involved  in  any  suit 
or  proceeding  before  them.  Robb  v.  Connolly,  111 
U.  S.,  624,  637;  Gibson  v.  Mississippi,  162  U.  S.,  565, 
586. 


286  CONSTITUTION  OF  UNITED  STATES.       [Art.  VI, 

Where  one  was  imprisoned  under  the  warrant  of  a 
district  judge  to  abide  the  order  of  the  President  for  the 
purpose  of  being  extradited  as  a  fugitive  from  the 
justice  of  France,  under  a  convention  with  that  coun- 
try, the  Supreme  Court  will  not  issue  a  writ  of  habeas 
corpus  to  inquire  into  the  cause  of  his  commitment.  In 
re  Metzer,  5  How.,  176. 

Acts  of  Congress  and  treaties. — A  treaty  is  the  su- 
preme law  of  the  land  and  binds  courts  as  much  as  any 
act  of  Congress.  U.  S.  v.  The  Peggy,  1  Cranch,  103 ; 
Strother  v.  Lucas,  12  Pet.,  410 ;  Fellows  v.  Blacksmith, 
19  How.,  366.  By  the  Constitution,  a  treaty  and  a 
statute  are  put  on  the  same  footing ;  and  if  the  two  are 
inconsistent,  the  one  last  in  date  will  control  if  the 
treaty  be  self -executing.  Whitney  v.  Robertson,  124 
U.  S.,  190;  Kelley  v.  Hedden,  124  U.  S.,  196.  A 
treaty  may  supersede  a  prior  act  of  Congress ;  and  an 
act  of  Congress  may  supersede  a  prior  treaty.  The 
Cherokee  Tobacco,  11  Wall.,  616.  Congress  is  bound  to 
regard  public  treaties  and  has  no  power  to  nullify  titles 
confirmed  many  years  before.  Eeichart  v.  Felps,  6 
Wall.,  160. 

Acts  of  Congress  may  abate  treaties. — Treaties  are 
subject  to  such  acts  of  Congress  as  may  be  passed  for 
their  enforcement,  modification  or  repeal.  Edye  v. 
Eobertson,  112  U.  S.,  580 ;  Whitney  v.  Robertson,  124 
,XJ.  S.,  190;  Chinese  Exclusion  Cases,  130  U.  S.,  581; 
Botiller  v.    Dominguez,    130   U.  S.,    238 ;    Horner   v. 


Art.  VI.]  CONSTITUTIOI^   SUPREME,   ETC.  287 

United  States,  143  U.  S.,  207;  Fong  Yog  Ting  v. 
United  States,  149  U.  S.,  698.  Thomas  v.  Gray,  169 
U.  S.,  264.  If  a  statute  is  in  conflict  with  a  treaty  of 
the  United  States  with  a  foreign  power,  the  courts  are 
bound  to  follow  the  statute.  Botiller  v.  Dominguez, 
130  U.  S.,  238.  Where  there  is  a  conflict  between  the 
treaties  with  the  Cherokees  and  later  statutes,  the  latter 
will  prevail.  United  States  v.  Old  Settlers,  148  U.  S., 
427. 

Treaties  'paramount  over  State  Constitutions  and 
laws. — Every  treaty,  while  in  force,  is  superior  to  the 
Constitution  or  laws  of  a  State.  Hauenstein  v.  Lyn- 
ham,  100  U.  S.,  483 ;  Ware  v.  Hylton,  3  DalL,  199. 

It  is  the  law  of  the  land,  whenever  its  provisions  pre- 
scribe a  rule  by  which  the  rights  of  the  private  citizen 
or  subject  may  be  determined.  Ex  parte  Cooper,  143 
U.  S.,  472. 

A  statute  of  l^ew  York  giving  to  Livingston  and  Ful- 
ton exclusive  right  to  navigate  all  waters  in  that  State 
by  steam  or  fire,  held  void,  as  repugnant  to  power 
granted  to  Congress.  Gibbons  v.  Ogden,  9  Wheat.,  1. 
"The  nullity  of  any  act,  inconsistent  with  the  Constitu- 
tion, is  produced  by  the  declaration  that  the  Constitu- 
tion is  the  supreme  law."     Id.,  210. 

The  treaty-making  power  of  the  United  States  ex- 
tends to  all  proper  subjects  of  negotiation  between  this 
government  and  other  nations.  De  Geofrey  v.  Riggs, 
133  U.  S.,  258. 

A  treaty  is  the  law  of  the  land,  and  its  provisions  must 


288  CONSTITUTION  OF  UNITED  STATES.      [Art.  VI. 

be  regarded  as  equivalent  to  an  act  of  the  legislature, 
when  it  operates  directly  on  a  subject,  yet,  if  it  be 
merely  a  stipulation  for  future  legislation,  the  courts 
must  await  the  action  of  the  legislature  upon  it,  before 
they  can  give  it  effect.  Poster  v.  ISTeilson,  2  Pet.,  253, 
314. 

Virginia  passed  an  act  Oct.  20,  1877,  to  sequester 
British  property.  It  provided,  "That  it  shall  be  lawful 
for  any  citizen  of  Virginia,  owing  money  to  a  subject  of 
Great  Britain,  to  pay  the  same,  or  any  part  thereof, 
from  time  to  time,  as  he  should  think  fit  into  the  loan  of- 
fice, taking  thereout  a  certificate  for  the  same  in  the 
name  of  the  creditor,  with  an  endorsemeoit  under  the 
hand  of  the  commissioner  of  said  office,  expressing  the 
name  of  the  payer ;  and  shall  deliver  such  certificate  to 
the  governor  and  council,  whose  receipt  shall  discharge 
him  from  so  much  of  said  debt." 

The  fourth  article  of  the  definitive  treaty  of  peace  be- 
tween the  United  States  and  Great  Britain  of  Sept.  3, 
1783  (8  Stats,  at  L.,  80),  agreed  "that  creditors  of  either 
side  shall  meet  with  no  lawful  impediment  to  the  recov- 
ery of  the  full  value,  in  sterling  money,  of  all  bona  fide 
debts  before  contracted.  It  was  held  that  the  British 
creditors  of  citizens  of  Virginia  could  recover  debts  pre- 
viously contracted,  notwithstanding  the  debtors  had 
paid  the  sums  due  into  the  loan  office  under  the  Vir- 
ginia law."  There  can  be  no  limitation  on  the  power  of 
the  people  of  the  United  States.     By  their  authority  the 


Art.  VI.]  TEEATIES,  ETC.,  SUPREME.  289 

State  Constitutions  were  made,  and  by  their  authority; 
the  Constitution  of  the  United  States  was  established; 
and  they  had  the  power  to  abolish  the  State  Constitu- 
tions,— to  make  them  yield  to  the  general  governme-nt, 
and  to  treaties  made  by  their  authority.  A  treaty  can 
not  be  the  supreme  law  of  the  land,  that  is,  of  all  the 
Unite-d  States,  if  any  act  of  a  State  legislature  can  stand 
in  its  way.     Ware  v.  Hylton,  3  Dall.,  199,  236. 

The  property  of  British  corporations,  in  this  country, 
is  protected  by  the  6th  article  of  the  treaty  of  1783  in 
the  same  manner  as  that  of  natural  persons,  and  the  act 
of  the  legislature  of  Vermont  granting  lands  in  that 
State,  which  belonged  to  The  Society  for  Propagating 
the  Gospel  in  Foreign  Parts,  a  British  corporation,  to 
the  respective  towns  in  which  the  lands  lie,  is  void,  and 
conveys  no  title.  Society  for  Propagation  of  Gospel  v. 
New  Haven,  8  Wheat,  464. 

The  treaty  power  of  the  United  States  extends  to  the 
protection  to  be  afforded  to  citizens  of  a  foreign  country 
owning  property  in  this  country,  and  to  the  manner  in 
which  it  may  be  transferred,  devised  or  inherited.  De 
Geofroy  v.  Eiggs,  133  U.  S.,  258. 

"A  treaty  with  Switzerland  gave  the  citizens  of  that 
country  owning  lands  in  fee  to  whom  lands  in  this  coun- 
try descended  the  right  to  recover  and  sell  the  lands  and 
withdraw  and  export  the  proceeds."  This  was  the  su- 
preme law  and  removed  all  incapacity  to  sell  imposed 
19 


290  CONSTITUTIOI^  OF  UNITED  STATES.     [Art.  VI. 

by  State  law.     Hauenstein  v.  Ljnliam,  100  U.  S.,  483, 
488. 

A  statute  of  Maryland  limited  the  right  of  aliens  to 
hold  lands.  The  treaty  of  amity  and  commerce  with 
Prance  of  1778  (8  Stats,  at  L.,  13,  Art.  11)  eoiabled  the 
subjects  of  France  to  purchase  and  hold  lands  in  the 
United  States.  The  State  law  is  inoperative.  Chirac 
V.  Chirac,  2  Wheat.,  259. 

A  treaty  is  a  law  of  the  land,  of  which  all  courts.  State 
and  National,  must  take  judicial  notice.  Under  an  ex- 
tradition treaty,  a  prisoner,  given  up  by  another  nation 
as  a  fugitive  charged  with  murder,  can  not  be  placed  on 
trial  for  any  other  offense.  United  States  v.  Rauscher, 
119  U.  S.,  407. 

^  The  United  States  made  a  treaty  with  an  Indian  tribe 
in  ^orth  Carolina.  A  subsequent  dispute  as  to  bound- 
ary was  settled  by  another  treaty.  This  was  binding 
on  the  State  and  on  private  rights ;  and  grants  of  land 
by  the  State  within  the  Indian  territory  were  held  void, 
though  the  fee  was  in  the  State  subject  to  Indian  right 
of  occupancy.     Lattimer  v.  Poteet,  14  Pet.,  4. 

The  law  of  Ge-orgia,  which  subjected  to  punishment 
all  white  persons  residing  within  the  limit  of  the  Chero- 
kee nation,  authorized  their  arrest  and  removal  there- 
from and  trial  in  the  State  courts,  is  held  unconstitu- 
tional because  repugnant  to  treaties  made  with  the  Cher- 
okees.     Worcester  v.  Georgia,  6  Pet.,  515. 

By  treaty  of  Xov.  3,  1762,  France  ceded  to  Spain  the 


Art.  VII.]  EATIFICATION.  291 

province  of  Louisiana.  A  grant  of  land  made  after  that 
date  was  void,  unless  ratified  by  Spain.  Long  contin- 
ued possession  miglit  justify  presumption  of  such  ratifi- 
cation. United  States  v.  D'Auterive,  10  How.,  609; 
Same  v.  Pillerin,  13  How.,  9 ;  Same  v.  Rillieux,  14: 
How.,  189 ;  Same  v.  Gusman,  14  How.,  193 ;  Same  v. 
Ducros,  15  How.,  38. 

AKTICLE  YIL 

"The  ratification  of  the  conventions  of  nine  States  shall 
be  sufficient  for  the  establishment  of  this  Constitution  be- 
tween the  States  so  ratifying  the  same." 

"Done  in  convention,  by  the  unanimous  consent  of  the 
States  present,  the  seventeenth  day  of  September,  in  the 
year  of  our  Lord  one  thousand  seven  hundred  and  eighty- 
seven,  and  of  the  independence  of  the  United  States  of 
America,  the  twelfth.  In  Witness  whereof  we  have  here- 
unto subscribed  our  names. 
(Signed  by) 

"Go.  Washington, 
"Presidt.  and  Deputy  from  Virginia," 

and  by  thirty-nine  delegates. 


292  co:nstitution  of  united  states.       [Am'ts, 


AMENDMENTS* 

In  addition  to,  and  amendment  of,  the  Constitution  of 
the  United  States  of  America,  proposed  by  Congress  and 
ratified  by  the  legislatures  of  the  several  States,  pursuant 
to  the  Fifth  Article  of  the  original  Constitution. 

The  first  ten  amendments  to  the  Federal  Constitution  contain 
no  restrictions  on  the  powers  of  States,  but  were  intended  to  op- 
erate solely  on  the  Federal  government.  Barron  v.  Baltimore,  7 
Pet.,  2i3;  Livingston  v.  Moore,  7  Pet.,  469;  Fox  v.  Ohio,  5  How., 
410;  Twitchell  v.  Com.,  7  Wall.,  321;  Edwards  v.  Elliott,  21  Wall., 
532;  United  States  v.  Cruikshank,  92  U.  S.,  542,  552;  Spies  v.  Illi- 
nois,  123  U.  S.,  131;  In  re  Sawyer,  124  U.  S.,  200,  219;  Eilen- 
becker  v.  Dist.  Court,  134  U.  S.,  31;  Davis  v.  Texas,  139  U.  S., 
651;  Thorington  v.  Montgomery,  147  U.  S.,  490;  Miller  v.  Texas, 
153  U.  S.,  535;  Ex  parte  Keggel,  114  CJ.  S.,  642;  Iowa  C.  R.  Co. 
V.  Iowa,  160  U.  S.,  389;  Chicago,  B.  &  Q.  R.  Co.  v.  Chicago,  166 
U.  S.,  226;  Missouri  v.  Lewis,  101  U.  S.,  22. 


AKTICLE  I. 

FREEDOM    OF   RELIGION,    SPEECH,    PRESS,    AND   RIGHT    OF 
PETITION. 

'Congress  shall  make  no  law  respecting  an  establishment 
of  religion,  or  prohibiting  the  free  exercise  thereof;  or 
abridging  the  freedom  of  speech,  or  of  the  press,  or  the 
right  of  the  people  peaceably  to  assemble,  and  to  petition 
the  government  for  a  redress  of  grievances." 


Art.  I.]  FREEDOM  OF  KELIGION^,  ETC.  293 

The  establishment  of  religion. — The  religious  estab- 
lishmeiit  of  England  was  adopted  in  the  Colony  of  Vir- 
ginia, and  by  it  the  freehold  of  church  lands  was  in 
the  parson.  The  act  of  the  legislature  of  17Y6  con- 
firmed to  the  church  its  right  to  these  lands.  Subse- 
quent statutes  which  sought  to  divert  the  rights  as  con- 
firmed and  vt'st  them  in  a  corporation  held  unconstitu- 
tional. The  statute  of  Virginia  confirming  the  titles 
to  church  lands  was  not  an  infringement  of  any  rights 
secured  under  the  Constitution.  Terrett  v.  Taylor,  9 
Cranch,  43. 

The  common  law  of  England  so  far  as  it  respects  the 
ete'ction  of  churches  of  the  Episcopal  persuasion  and 
the  corporate  capacity  of  the  parson  to  take  in  succes- 
sion was  recognized  in  the  province  of  ]N^ew  Hampshire 
prior  to  the  revolution.  Pawlet  v.  Clark,  9  Cranch, 
292.  A  grant  to  the  church  vested  the  fee  in  the  par- 
son.    Id. 

A  statute  of  the  United  States,  for  the  territory  of 
Utah,  provided  that  no  bigamist,  polygamist  or  any  per- 
son cohabiting  with  more  than  one  woman,  etc.,  should 
be  entitled  to  vote.  This  held  valid.  Murphy  v.  Ram- 
sey, 114  U.  S.,  15. 

The  above  clause,  "Congress  shall  make  no  law  re- 
specting the  establishment  of  religion,  or  prohibiting 
the  free  exercise  thereof,"  does  not  make  void  an  act 
of  a  territory  excluding  from  offices  of  trust  and  honor 


294  CONSTITUTION  OF  UNITED  STATES.  [Am'tS, 

those  who   disobey  the  law   in  practicing  polygamy. 
Davies  v.  Beason,  133  U.  S.,  333. 

The  pretense  of  religious  belief  can  not  deprive  Con- 
gress of  the  power  to  prohibit  polygamy  and  all  other 
like  offenses  in  a  territory.  Congress  may  provide  for 
tjie  winding  up  of  a  so-called  religious  corporation  in- 
corporated by  territorial  acts.  It  possesses  all  the 
chancery  powers  necessary  to  the  proper  superinten- 
dence and  direction  of  any  gift  to  a  charitable  use. 
Mormon  Church  v.  U.  S.,  136  U.  S.,  1. 

A  party's  religious  belief  does  not  shield  him  for 
committing  acts  which  violate  the  laws  of  the  land.  He 
can  not  plead  his  faith  to  justify  polygamy.  Reynolds  v. 
United  States,  98  U.  S.,  145 ;  Cannon  v.  United  States, 
116  U.  S.,  55 ;  Murphy  v.  Ramsay,  114  U.  S.,  15. 

The  Constitution  makes  no  provision  for  protecting 
the  citizens  of  the  respective  States  in  their  religious 
liberties;  this  is  left  to  the  State  Constitutions  and 
laws ;  nor  is  there  any  prohibition,  imposed  on  the 
States  by  the  Federal  Constitution  in  this  respect.  Per- 
moli  V.  First  Municipality,  3  How.,  689.  , 

A  devise  upon  a  trust  to  establish  and  maintain  a 
college  for  the  education  of  indigent  or  poor  boys  is  a 
charitable  trust,  although  the  will  of  the  testator  ex- 
cludes all  ecclesiastics,  missionaries,  and  ministers  of 
the  gospel,  of  all  sects,  from  any  trust  or  duty  concern- 
ing the  college  or  from  entry  into  it  e*ven  as  visitors. 
Vidal  V.  Girard's  Executors,  2  How.,  127. 


Art.  II.]    RIGHT  TO  KEEP  Al^D  BEAR  ARMS.         295 

There  are  many  decisions  of  the  Supreme  Court  on 
questions  relating  to  the  rights  of  religious  societies; 
but  they  do  not  turn  on  constitutional  questions. 

An  agreement  by  the  commissioners  of  the  District 
of  Columbia,  to  maintain  a  hospital,  made  with  the  Sis- 
ters of  the  Roman  Catholic  church,  for  poor  patients 
of  the  District  of  Columbia,  to  be  paid  for  by  appropria- 
tions made  by  Congress,  does  not  conflict  with  the  1st 
Amendment  that  Congress  shall  make  no  law  respecting, 
the  e'stablishment  of  religion.  Bradfield  v.  EobertSj, 
175  U.  S.,  291. 

The  appropriation  by  Congress  of  money  to  a  hospi- 
tal for  the  treatment  of  poor  patients,  under  a  contract, 
lield,  not  an  appropriation  to  religious  societies,  in  vio- 
lation of  the  Constitutional  provision  respecting  an  es- 
tablishment of  religion.  Bradfield  v.  Roberts,  175 
F.  S.,  291. 


ARTICLE    11. 

THE  RIGHT  TO  KEEP  AND  BEAR  ARMS. 

"A  well-regulated  militia  being  necessary  to  the  security 
of  a  free  State,  the  right  of  the  people  to  keep  and  bear 
arms  shall  not  be  infringed." 

The  right  to  hear  arms  is  not  granted  by  the  Consti- 
tution ;  nor  in  any  manner  dependent  upon  that  instru* 


296        CONSTITUTION  OF  UNITED  STATES.    [Am'tS, 

ment  for  its  existence.  The  Second  Amendment  means 
no  more  than  that  Congress  shall  not  infringe  the  right. 
United  States  v.  Cruikshank,  92  U.  S.,  542.  This 
amendment  is  a  limitation  only  on  the  poweTs  of  Con- 
gress and  the  National  goveTnment.  But  in  view  of  the 
fact  that  all  citizens  capable  of  bearing  arms  constitute 
the  reserved  military  force  of  the  National  government, 
as  well  as  in  view  of  its  general  powers,  the  States  can 
not  prohibit  the  people  from  keeping  and  bearing  arms, 
so  as  to  deprive  the  United  States  of  their  rightful  re- 
source in  maintaining  the  public  security.  State  legis- 
latures may,  however,  enact  statutes  to  control  and  regu- 
late all  organizations,  drilling,  and  parading  of  military 
bodies  and  associations  except  those  which  are  author- 
ized by  the  militia  laws  of  the  United  States.  Presser 
y.  Illinois,  116  U.  S.,  252.. 

V  AETICLE   III. 

QUARTERING    OF    SOLDIERS    IN    HOUSES. 

"No  soldier  shall,  in  time  of  peace,  be  quartered  in  any 
house,  without  the  consent  of  the  owner,  nor  in  time  of 
war,  but  in  a  manner  to  be  prescribed  by  law." 

Of  this  amendment  Story  says :  ^'Its  plain  object  is 
to  secure  the  perfect  enjoyment  of  that  great  right  of 
the  common  law,  that  a  man's  house  shall  be  his  own 
castle   privileged   against   all   civil   and   military   in- 


Art.  IV.]  NO  SEARCHES  AND  SEIZURES.  297 

trusions.  The  billeting  of  soldiers  in  time  of  peace 
upon  the  people  has  been  a  common  resort  of  arbitrary 
princes,  and  is  full  of  inconvenience  and  peril.  In  the 
Petition  of  Right  (4  Charles  I.),  it  was  declared  by 
Parliament  to  be  a  great  grievance."  Story's  Com.  on 
Constitution,  5  ed..  Sec.  1900.  As  to  the  effect  of  mar- 
tial law,  see.  In  re  Milligan,  4  Wall.,  2,  124,  141. 

ARTICLE    IV. 

SECURITY  AGAINST  SEARCHES  AND  SEIZURES. 

"The  right  of  the  people  to  be  secure  in  their  persons, 
houses,  papers,  and  effects,  against  unreasonable  searches 
and  seizures,  shall  not  be  violated,  and  no  warrant  shall 
issue  but  upon  probable  cause,  supported  by  oath  or  affirm- 
ation, and  particularly  describing  the  place  to  be  searched, 
and  the  persons  or  things  to  be  seized.'* 

Searches  and  seizures. — It  does  not  require  actual 
entry  upon  premises  and  search  for  and  seizure  of 
papers  to  constitute  an  unreasonable  search  and  seizure 
within  the  meaning  of  the  Fourth  Amendment.  A 
compulsory  production  of  a  party's  private  books  and 
papers  to  be  used  against  himself  or  his  property  in  a 
criminal  proceeding,  or  for  a  forfeiture,  is  within  the 
spirit  of  the  amendment.  Boyd  v.  United  States,  116 
U.  S.,  616. 

Searches  and  seizures  in  the  mails. — Letters  and 
sealed  packages  in  the  mails  subject  to  letter  postage, 


298  COI!^STITUTIOI^  OF  UNITED  STATES.  [Am'tS, 

can  be  opened  and  examined  only  under  like  warrant 
issued  upon  oath  or  affirmation,  particularly  describing 
the  tbing  to  be  seized,  as  is  required  when  papers  are 
subjected  to  search  in  one's  own  household.  The  con- 
stitutional guaranty  of  the  right  of  the  people  to  be  se- 
cure in  their  papers  against  unreasonable  searches  and 
seizures  extends  to  their  papers  thus  closed  against  in- 
spe-ction,  wherever  they  may  be.  Ex  'parte  Jackson,  96 
U.  S.,  727. 

Applies  only  to  National  government. — This  pro- 
vision does  not  apply  to  searches  and  seizures  made  by 
State  authorities ;  and  when  letters  of  an  accused  person 
have  been  seized  and  used  against  him  in  a  trial  in  a 
State  court,  no  Federal  question  is  presented  by  such 
procedure.  Spies  v.  Illinois,  123  U.  S.,  131.  Espe- 
cially so,  when  the  objection  to  the  admission  of  such 
letters  was  not  made,  at  the  trial,  but  for  first  time  in 
the  State  Supreme  Court.     Id. 

A  State  statute,  which  prohibits  oyster  fishing  in 
modes  that  would  destroy  the  beds  altogether,  is  within 
State  power  of  regulation,  and  it  may  declare  vessels 
illegally  engaged  forfeited,  and  though  it  does  not  pro- 
vide for  seizure  by  warrant  on  oath  that  question  can 
not  be  raised  in  the  Supreme  Court  of  the  United 
State-s.     Smith  v.  Maryland,  18  How.,  71. 

Warrants  of  distress  under  Federal  law. — An  act  of 
Congress  (3  Stats,  at  L.,  592),  authorized  the  Solicitor 
of  the  Treasury  to  issue  warrants  of  distress  against  the 


Art.  v.]  SAFEGUARDS  TO  ACCUSED.  299^ 

property  of  a  revenue  officer,  for  the  amount  found  due 
on  adjusting  his  accounts  in  the  Treasury  department. 
This  act  held  constitutional,  it  being  usual  in  English 
and  American  law  to  authorize  such  provisions.  Mur- 
ray's Lessee  v.  Hoboken  Land  Co.,  18  How.,  272. 

AKTICLE  Y. 

SAFEGUARDS  TO  ACCUSED  PERSONS. 

"No  person  shall  be  held  to  answer  for  a  capital  or  other- 
wise infamous  crime,  unless  on  a  presentment  or  indict- 
ment of  a  grand  jury,  except  in  cases  arising  in  the  land 
or  naval  forces,  or  in  the  militia,  when  in  actual  serv- 
ice in  time  of  war  or  public  danger ;  nor  shall  any  person 
be  subject  for  the  same  offence  to  be  twice  put  in  jeopardy 
of  life  or  limb ;  nor  shall  be  compelled  in  any  criminal  case 
to  be  a  witness  against  himself,  nor  be  deprived  of  life, 
liberty,  or  property,  without  due  process  of  law;  nor  shall 
private  property  be  taken  for  public  use  without  just  com- 
pensation." 

Exception  in  time  of  war  or  public  danger  applies  to 
militia  only. — In  the  Fifth  Article  of  the  Amendments 
to  the  Constitution  of  the  United  States  providing  that 
no  person  shall  be  held  to  answer  for  a  capital  or  other- 
wise infamous  crime,  unless  on  presentment  or  indict- 
ment of  a  grand  jury,  except  in  cases  arising  in  the  land 
or  naval  forces,  or  in  the  militia,  when  in  actual  service 


300        CONSTITUTION  OF  UNITED  STATES.    [Alll'tS, 

in  time  of  war  or  public  danger,  the  words,  "when  in 
actual  war  or  public  danger"  apply  to  the  militia  only. 
Johnson  v.  Sayre,  158  U.  S.,  109. 

Filing  informations  in  cases  of  infamous  crime. — 
The  practice  of  filing  informations  against  persons  ac- 
cused of  infamous  crimes,  is  in  violation  of  their  right 
under  the  Fifth  Amendment,  and  persons  convicted 
upon  such  information  of  an  infamous  crime  and  im- 
prisoned upon  the  sentence  are  eoititled  to  discharge  on 
habeas  corpus.  An  infamous  crime,  within  the  provi- 
sions of  the  Fifth  Amendment,  includes  one  punishable 
by  imprisonment  for  a  term  of  years  with  or  without 
hard  labor.  Ex  parte  Wilson,  114  U.  S.,  415 ;  Mackin 
V.  United  States,  117  U.  S.,  348 ;  Parkinson  v.  United 
States,  121  U.  S.,  281;  United  States  v.  De  Walt,  128 
U.  S.,  393. 

An  acquittal  on  a  criminal  information  for  violation 
of  the  revenue  laws  is  a  good  plea  in  bar  to  a  civil  infor- 
mation for  the  forfeiture  of  goods,  arising  upon  the 
same  acts.  Coffey  v.  United  States,  116  U.  S.,  436; 
Boyd  V.  United  States,  116  U.  S.,  63.4. 

Indictment  not  amendable. — The  declaration  that 
"no  person  shall  be  held  to  answer  for  a  capital  or  otheT- 
wise  infamous  crime,  unless  on  a  presentment  or  indict- 
ment of  a  grand  jury"  is  jurisdictional.  After  the  in- 
dictment has  been  preseoited  there  can  be  no  amendment 
of  the  same  in  the  body  of  the  indictment.  Ex  parte 
Bain,  121  U.  S.,  1. 


Art.  v.]        SAFEGUARDS  TO  ACCUSED.  301 

Admiralty  cases  not  criminal. — An  information  filed 
in  the  district  court  to  enforce  the  forfeiture  of  a  ves- 
sel for  exporting  arms  and  ammunition  contrary  to 
U.  S.  Stats,  at  L.,  369,  is  a  civil  cause  of  admiralty  and 
maritime  jurisdiction,  and  not  to  be  tried  by  a  jury. 
United  States  v.  La  Vengeance,  3  Dall.,  297. 

Trial  hy  jm^y — criminal  procedure, — The  power 
given  Congress  to  make  rules  for  the  government  of  the 
land  and  naval  forces,  authorizes  the  passing  by  Con- 
gress of  laws  to  punish  military  and  naval  offenses,  with- 
out indictment  by  grand  jury  or  trial  by  jury,  and  under 
such  laws  the  President  may  direct  the  imprisonment 
of  one  convicted  by  a  naval  court  martial  of  attempt  to 
desert.     Dynes  v.  Hoover,  20  How.,  65. 

The  guaranty  of  trial  by  jury  is  of  force  as  well  in 
time  of  war  as  in  time  of  peace,  and  can  not  be  sus- 
pended nor  a  citizeii  tried  and  convicted  by  a  military 
commission  in  a  State  not  in  insurrection,  and  where 
the  courts  of  the  United  States  are  regularly  sitting. 
IN'either  the  President,  nor  Congress,  nor  the  judiciary, 
can  disturb  the  safeguards  to  liberty  which  this  pro- 
vision of  the  Constitution  affords.  Ex  'parte  Milligan, 
4  Wall.,  1. 

In  a  trial  in  the  Federal  courts,  the  rule  is  that  the 
court  may  expre-ss  its  opinion  upon  the  facts  of  the  case. 
McLanahan  v.  Ins.  Co.,  1  Pet.,  182 ;  Games  v.  Stiles^ 
14  Pet,  322 ;  Mitchell  v.  Harmony,  13  How.,  116. 

An  act  may  be  an  offense  against  the  United  States 


302        CONSTITUTION  OF  UNITED  STATES.    [Am'tS, 

and  against  a  law  of  a  State,  and  not  for  that  reason 
contravene  the  Federal  Constitution.  So  held  of  a  stat- 
ute of  Illinois  making  it  a  crime  to  harbor  or  secrete  a 
fugitive  negro  slave.     Moore  v.  Illinois,  14  How.,  13. 

The  Act  of  May  15,  1820,  which  authorizes  the  So- 
licitor of  the  Treasury  to  issue  a  warrant  of  distress 
against  the  property  of  a  revenue  officer  for  the  amount 
found  due  on  adjusting  his  accounts  is  constitutional. 
Murray's  Lessees  v.  Hoboken,  etc.,  Co.,  18  How.,  272. 

The  Fifth  Amendment  of  the  Constitution  relating 
to  criminal  prosecutions,  was  not  designed  as  limits 
upon  the  State  governments  but  exclusively  as  restric- 
tions upon  Federal  poweT.  Twitchell  v.  Common- 
wealth of  Pennsylvania,  7  Wall.,  321. 

The  organic  law  of  the  territory  of  Iowa,  by  express 
provisions  and  by  reference,  extended  the  laws  of  the 
United  States,  including  the  Ordinance  of  1787,  over 
the  territory  so  far  as  applicable.  This  preserved  the 
right  of  trial  by  jury  there.  Webster  v.  Eeid,  11  How., 
437,  460. 

"The  trial  by  jury  is  justly  dear  to  the  American 
people.  It  has  always  been  an  obje-ct  of  deep  interest 
and  solicitude,  and  every  encroachment  upon  it  has 
been  watched  with  great  jealousy.  One  of  the  strong- 
est objections  originally  taken  against  the  Constitution 
of  the  United  States,  was  the  want  of  an  express  pro- 
vision securing  the  right  of  trial  by  jury  in  civil  cases. 
As  soon  as  the  Constitution  was  adopted,  this  right  was 


Art.  v.]        SAFEGUARDS  TO  ACCUSED.  303 

secured  by  the  Seventh  Amendmeiit  of  the  Constitution 
proposed  by  Congress,  which  received  an  assent  of  the 
people  so  general  as  to  establish  its  importance  as  a 
fundamental  guaranty  of  the  rights  and  liberties  of  the 
people."     Story,  J.,  in  Parsons  v.  Bedford,  3  Pet.,  433. 

What  is  ''due  process  of  law  f — Congress,  in  the  ex- 
ercise of  its  power  "to  lay  and  collect  taxes,  duties,  im- 
posts and  excises,"  may,  to  enforce  their  payment,  au- 
thorize the  distraint  and  sale  of  either  real  or  personal 
property,  and  this  is  not  depriving  of  property  without 
due  process  of  law.  Springer  v.  United  States,  102 
U.  S.,  586.     See,  ante,  p.  302. 

A  bill  in  equity  to  declare  invalid  and  enjoin  €*nforce- 
ment  of  a  judgment  obtained  against  the  defendant  for 
a  tort  committed  under  military  authority,  in  accord- 
ance with  the  usages  of  civilized  warfare,  is  "due  pro- 
cess of  law,"  and  not  in  conflict  with  the  Federal  Con- 
Btitution.  Preeland  v.  Williams,  131  U.  S.,  405.  See, 
ante,  p.  192. 

Compelling  to  he  witness  against  self  in  criminal 
cases. — The  provision  of  the  Act  of  February  11,  1893 
(c.  83,  27  Stat,  at  L.,  443),  "that  no  person  shall  be 
excused  from  attending  and  testifying,  or  from  produc- 
ing books,  papers,  tariffs,  contracts,  agreements,  and 
documents  before  the  Interstate  Commerce  Commis- 
sion, or  in  obedience  to  the  subpoena  of  the  Commis- 
sion on  the  ground  or  for  the  reason  that  the  testimony 
or  evidence,    documentary   or   otherwise,    required   of 


304 


CONSTITUTIOI^  OF  UNITED  STATES.  [Am'tS^ 


him  may  tend  to  criminate  him  or  subject  him  to  any 
penalty  or  forfeiture  for  or  on  account  of  any  transac- 
tion, matter  or  thing,  concerning  which  he  may  testify^ 
or  produce  evidence,  documentary  or  otherwise,  before 
said  commission  or  in  obedience  to  its  subpoena,  or  the 
subpoena  of  either  of  them,  or  in  any  such  case  or  pro- 
ceeding. But  no  person  shall  be  prosecuted  or  sub- 
jected to  any  penalty  or  forfeiture  for  or  on  account  of 
any  transaction,  matter  or  thing  concerning  which  he 
may  testify,  or  produce  evidence,  documentary  or  other- 
wise, before  said  commission,  or  in  obedience  to  its  sub- 
poena or  the  subpoena  of  either  of  them,"  affords  abso- 
lute immunity  against  prosecution,  Federal  or  State^ 
for  the  offense  to  which  the  question  relate-s,  and,  hence, 
the  witness  can  not  shelter  himself  from  answering  be- 
hind this  provision  of  the  Constitution.  Brown  v. 
Walker,  161  Wis.,  591. 

Where  a  person  is  under  examination  before  a  grand 
jury,  in  an  investigation  into  certain  alleged  violations 
of  the  Interstate  Commerce  Act  of  Feb.  4,  1887  (24 
Stats,  at  L.,  379,  and  the  Act  of  March  2,  1889,  25 
Stats,  at  L.,  855),  he  is  not  obliged  to  answer  questions 
where  he  states  that  his  answers  might  tend  to  crimin- 
ate him,  although  the  Eevised  Statutes,  §  860,  provide 
that  no  evidence  given  by  him  shall  in  any  manner  be 
used  against  him,  in  any  court  of  the  United  States  in 
any  criminal  proceeding.  'No  statute  that  does  not  af- 
ford complete  immunity  from  future  prosecution  can 


Art.  v.]  SEARCHES  AND  SEIZURES.  305 

supplant  the  privilege  conferred  by  the  Constitution. 
Counselman  v.  Hitchcock,  142  U.  S.,  648.  The  stat- 
ute of  1893,  above  referred  to,  appears  to  have  been 
passed  in  view  of  this  decision. 

Seizure  of  private  papers  to  he  used  as  evidence.--^ 
The  seizure  or  compulsory  production  of  a  man's  pri- 
vate papers  to  be  used  in  evidence  against  him  is  equiva- 
lent to  making  him  testify  against  himself,  and  in  a 
prosecution  for  a  crime,  penalty  or  forfeiture,  is  equally 
within  the  prohibition  of  the  Fourth  Amendment.  Boydi 
V.  United  States,  116  U.  S.,  616. 

The  Fourth  and  Fifth  Amendments  run  into  and 
shed  light  upon  each  other.  When  the  thing  forbidden 
in  the  Fifth  Amendment,  viz.,  compelling  a  man  to  be 
a  witness  against  himself,  is  the  object  of  a  search  and 
seizure  of  his  private  papers,  it  is  an  unreasonable 
"search  and  seizure"  within  the  Fourth  Amendment. 
Search  and  seizure  of  a  man's  private  papers  to  be  used 
in  evidence  to  convict  him  of  a  crime  or  recover  a  peoi- 
alty  or  to  forfeit  his  property  is  totally  different  from 
the  search  and  seizure  of  stolen  goods,  dutiable  articles 
for  unpaid  duties,  etc.,  which  rightfully  belong  to  the 
custody  of  the  law.     Id. 

The  5th  section  of  the  Act  of  June  22,   1874  (18 

Stats,   at  L.,   186),  which  authorizes  a  court  of  the 

United  States,  on  motion  of  the  government  attorney, 

to  require  the  defendant  or  claimant,  in  revenue  cases, 

to  bring  his  private  books,  invoices,  and  papers  into- 
20 


306 


COIs^STITUTION-  OP  UI^ITED  STATES.  [Am'tS, 


court,  or  else  that  the  allegations  of  the  complaint  be 
deemed  confessed,  held  unconstitutional  and  void,  as  ap- 
plied to  suits  for  penalties,  or  for  a  forfeiture  of  the 
party's  goods,  as  such  action  for  forfeiture  or  penalty 
is  a  "criminal  case,"  within  the  meaning  of  that  part  of 
the  Fifth  Amendment  which  declares  that  "no  person 
shall  be  compelled  in  any  criminal  case,  to  be  a  witness 
against  himself."     Id. 

Not  applicable  to  seizures  hy  State  authority. — The 
arrest  of  a  vessel  engaged  in  taking  oysters  contrary 
to  the  statute  of  Maryland,  held  not  contrary  to  the 
Constitution  of  the  United  States,  as  without  "due  pro- 
cess of  law,"  as  the  Fifth  Amendment  restraining  the 
issue  of  warrants,  but  on  probable  cause,  etc.,  applies 
only  to  the  United  States  and  not  the  State  authorities. 
JSmith  V.  Maryland,  18  How.,  71. 

^  ;The  Fifth  and  Sixth  Amendments  to  the  Constitution 
(relating  to  criminal  prosecutions)  were  not  designed  as 
limits  upon  the  State  governments  in  reference  to  their 
own  citizens,  but  are  only  restrictions  upon  Federal 
power.  Barron  v.  Baltimore,  7  Pet.,  243 ;  Thorington 
V.  Montgomery,  147  U.  S.,  490.     See,  ante,  p.  292. 

Talcing  for  public  use — Sale  of  liquors  may  be  for- 
bidden.— Forbidding  the  manufacture  or  sale  of  intox- 
icating liquors  is  not  a  taking  of  property  for  public 
use,  nor  without  due  process  of  law.  Mugler  v.  Kan- 
sas, 123  U.  S.,  623. 

In  condemnation  proceedings   for  taking  lands  for 


Art.  v.]  EMINENT  DOMAIN.  307 

public  use  under  a  State  statute,  a  published  notice  of 
the  proceedings,  in  compliance  with  the  statute,  is  "due 
process  of  law,"  And  where  the  commissions  appointed 
to  appraise  have  been  sworn  and  acted,  the  question 
whether  one  of  them  was  a  freeholder  can  not  be  raised 
collaterally  in  an  action  of  trespass  for  entering  the 
land  after  condemnation.  Huling  v.  Kaw  Valley  Ry. 
Co.,  130  U.  S.,  559.     See,  post,  p.  374. 

The  provision  of  the  Fifth  Amendment,  as  to  taking 
private  property,  is  only  a  limitation  of  the  power  of 
the  United  States ;  it  is  not  applicable  to  the  legislation 
of  the  several  States.     Barron  v.  Baltimore,  7  Pet.,  242. 

The  taking  of  a  toll  bridge,  owned  by  a  private  cor- 
poration, may  be  accomplished  for  a  public  highway  by 
eminent  domain,  and  this  taking,  with  compensation, 
does  not  impair  the  obligation  of  a  contract.  West  Riv. 
Bridge  Co.  v.  Dix,  6  How.,  507 ;  Withers  v.  Buckley, 
20  How.,  84. 

The  Confiscation  Acts  of  August  6,  1861  (12  Stats, 
at  L.,  319),  and  July  17,  1862  (12  Stats,  at  L.,  588), 
are  an  exercise  of  the  war  power  and  not  in  conflict 
with  the  restrictions  of  the  Fifth  and  Sixth  Amend- 
ments. Miller  v.  United  States,  11  Wall.,  268.  But 
the  purchase  of  the  property  of  a  loyal  citizen  of  the 
late  rebel  confederacy,  under  such  statutes,  is  void. 
Knox  v.  Lee,  12  Wall.,  457. 

Laws  for  the  flowing  of  lands  for  mill-dams,  or  other 
like  uses,  are  constitutional,  if  they  provide  for  compen- 


308  CONSTITUTION  OF  UNITED  STATES.  [Am'tS, 

Bation ;  and  land  sold  by  the  United  States,  thougli  bor- 
defring  on  navigable  streams,  is  within  the  protection  of 
the  constitutional  provision.  Pumpelly  v.  Green  Bay 
&  M.  Canal  Co.,  13  Wall.,  166. 

The  right  of  eminent  domain  exists  in  the  govern- 
ment of  the  United  States,  and  may  be  exercised  within 
the  States  so  far  as  necessary  in  the  enjoyment  of 
powers  conferred  upon  it  by  the  Constitution.  Kohl  v. 
United  States,  91  U.  S.,  367. 

The  general  grant  of  legislative  power  in  the  Consti- 
tution of  a  State  does  not  authorize  the  legislature,  in 
the  exercise  either  of  the  right  of  eminent  domain,  or 
the  right  of  taxation,  to  take  private  property,  without 
the  owner's  consent  for  any  but  a  public  object,  and  not 
as  a  mere  donation  to  a  private  manufacturing  corpora- 
tion.    Cole  V.  La  Grange,  113  U.  S.,  1. 

The  provision  in  the  Fifth  ^i^iendment  of  the  Consti- 
tution, declaring  that  private  property  shall  not  be  taken 
for  public  use  without  just  compensation,  is  a  limita- 
tion on  the  power  of  the  United  States,  not  upon  the 
legislation  of  the  several  States.  Barron  v.  Baltimore, 
7  Pet,  243. 

Compensation  for  property  taken  for  public  use. — In 
proceedings  taken  in  behalf  of  the  United  States  under 
Act  of  August  8, 1888  (25  Stat,  at  L.,  pp.  400,  411),  to 
condemn  the  locks  and  dam  of  the  Monongahela  ^Naviga- 
tion  Company,  the  latter  is  entitled  under  the  Fifth 
Amendment  to  compensation  for  its  franchise,  to  take 


Art.  v.]  TWICE  IN  JEOPARDY.  309 

tolls,  as  well  as  for  the  value  of  its  tangible  property. 
Monongahela  JSTav.  Co.  v.  United  States,  148  U.  S.,  312. 

Twice  in  jeopardy. — Where  a  court  has  imposed  fine 
and  imprisonment,  where  the  statute  conferred  power 
only  to  punish  by  fine  or  imprisonment,  and  the  fine  has 
been  paid,  the  court  can  not,  even  during  the  same  term, 
modify  the  sentence  by  imposing  imprisonment  instead 
of  the  former  sentence.    Ex  parte  Lange,  18  How.,  163. 

The  same  act  or  series  of  acts  may  constitute  an  of- 
fense equally  against  the  United  States  and  against  a 
State,  and  subject  the  guilty  party  to  punishment  under 
the  laws  of  each  State.  Cross  v.  iN'orth  Carolina,  132 
U.  S.,  132 ;  United  States  v.  Marigold,  9  How.,  560, 
669 ;  Fox  v.  Ohio,  5  How.,  410,  433 ;  Moore  v.  Hlinois, 
14  How.,  13, 19 ;  Ex  parte  Siebold,  100  U.  S.,  371,  390. 
In  the  latter  case  it  is  held  that  Congress  may  pass  a  law 
to  punish  a  violation  of  any  State  law  in  regard  to  the 
election  of  Representatives  to  Congress.  See,  antej  pp. 
8,  301. 

Where  a  jury  in  a  criminal  case  is  discharged  during 
the  trial  because  one  of  the  jurymen  had  sworn  on  his 
voir  dire  that  he  had  no  acquaintance  with  the  accused ; 
and  this  fact  had  been  disputed  in  a  newspaper  article, 
which  the  jury  had  read,  a  re-trial  does  not  put  the  ac- 
cused twice  in  jeopardy  within  the  meaning  of  the  Fifth 
Amendment.  United  States  v.  Simmons,  142  U.  S., 
148,  citing  United  States  v.  Perez,  9  Wheat.,  979. 


310  CONSTITUTIOI^  OF  UNITED  STATES.  [Am'tS, 

ARTICLE  VI. 

RIGHTS  OF  ACCUSED  PEESONS. 

"In  all  criminal  prosecutions,  the  accused  shall  enjoy 
the  right  to  a  speedy  and  public  trial,  by  an  impartial 
jury  of  the  State  and  district  wherein  the  crime  shall 
have  been  committed,  which  district  shall  have  been  pre- 
viously ascertained  by  law,  and  to  be  informed  of  the 
nature  and  cause  of  the  accusation;  to  be  confronted 
with  the  witnesses  against  him;  to  have  compulsory  pro- 
cess for  obtaining  witnesses  in  his  favor,  and  to  have  the 
assistance  of  counsel  for  his  defense." 

The  courts  of  the  United  States  have  no  common-law 
jurisdiction  of  offenses  at  common  law  against  the 
United  States*  United  States  v.  Coolidge,  1  Wheat., 
415.  Therefore,  they  can  not  take  cognizance  of  a 
criminal  prosecution  for  a  libel  against  the  President 
and  Congress  of  the  United  States.  United  States  v. 
Hudson,  7  Cranch,  32.  There  are  no  common-law  of- 
fenses against  the  United  States.  United  States  v. 
Britton,  108  U.  S.,  206 ;  United  States  v.  Eaton,  144 
U.  S.,  677.  And  the  Federal  courts  can  punish  only 
Buch  offenses  as  are  defined  and  made  punishable  by  the 
statutes  of  the  United  States.     Id. 

The  statute  of  Pennsylvania  enacted  that  "In  any  in- 
dictment for  murder  or  manslaughter  it  shall  not  be 


Art.  VI.]  EIGHTS  OF  ACCUSED.  311 

necessary  to  set  forth  the  manner  in  which,  or  the  means 
by  which,  the  death  of  the  deceased  was  caused ;  but  it 
shall  be  sufficient  in  every  indictment  for  murder  to 
charge  that  the  defendant  did  feloniously,  wilfully  and 
of  malice  aforethought,  kill  and  murder  the  deceased." 
A  defendant  under  sentence  of  death  in  the  court.  Oyer 
and  Terminer  of  Pennsylvania,  sued  out  a  writ  of  er- 
ror from  the  Supreme  Court  of  the  United  States  on 
the  ground  that  the  indictment  did  not  sufficiently  in- 
form the  accused  of  the  nature  of  the  accusation  against 
him.  Held,  (1)  That  the  court  has  no  jurisdiction,  as 
the  Fifth  and  Sixth  Amendments  do  not  apply  to  the 
State  governments ;  (2)  that  in  the  opinion  of  the  court, 
it  is  doubtful  whether  such  an  indictment  is  sufficient. 
Twitchell  v.  Commonwealth,  7  Wall.,  321.  In  the 
States  which  have  authorized  this  form  of  indictment, 
it  is  held  sufficient.  See,  State  v.  Allen,  85  Wis.,  22, 
and  cases  cited. 

The  Supreme  Court  has  not  authority  to  issue  a  writ 
of  habeas  corpus  to  bring  up  the  body  of  a  person  com- 
mitted to  jail  for  a  contempt  by  a  circuit  court  of  the 
District  of  Columbia.  Ex  parte  Kearney,  7  Wheat., 
38.     See,  post,  p.  387. 

The  deck  of  a  private  American  vessel  is  considered 
for  many  purposes  constructively  as  territory  of  the 
United  States.  Yet  persons  on  board  such  vessels, 
whether  officers,  sailors,  or  passengers,  can  not  invoke 
the  protection  of  the  provisions  of  the  Constitution  as 


312  CONSTITUTION  OF  UNITED  STATES.         [Am'tS, 

to  indictment  and  trial  by  jury,  until  brought  within  the 
actual  territorial  limits  of  the  United  States.  Koss  v. 
Mclntyre,  140  U.  S.,  453. 


AETICLE  VII. 

TRIAL  BY  JURY  IN  CASES  AT  LAW. 

"In  snits  at  common  law,  where  the  value  in  contro- 
versy shall  exceed  twenty  dollars,  the  right  of  trial  by 
jury  shall  be  preserved,  and  no  fact  tried  by  a  jury  shall 
be  otherwise  re-examined  in  any  court  of  the  United  States, 
than  according  to  the  rules  of  the  common  law." 

"Suits  at  common  law,"  within  the  meaning  of  the 
Seventh  Amendment,  include,  not  merely  modes  of  pro- 
ceeding known  to  the  common  law,  but  all  suits,  not 
of  equity  or  admiralty  jurisdiction,  in  which  legal 
rights  are  settled  and  determined.  Parsons  v.  Bedford, 
3  Pet.,  433. 

The  clause  in  the  amendment,  "No  fact  tried  by  a 
jury  shall  be  otherwise  re-examined,  than  according  to 
the  rules  of  the  common  law,"  is  a  prohibition  to  the 
courts  of  the  United  States  to  re-examine  any  facts  tried 
by  a  jury  in  any  other  manner.  The  only  modes  known 
to  the  common  law  to  re-examine  such  facts,  are  the 
granting  of  a  new  trial  by  the  court  where  the  issue  was 
tried,  or  to  which  the  record  was  returnable,  or  the 
award  of  a  venire  facias  de  novo,  by  an  appellate  court. 


Art.  VII.]  TRIAL  BY  JURY.  313 

for  some  error  of  law  which  intervened  in  the  proceed- 
ings.    The  Judiciary  Act  of  1789,  c.  20,  Sec.  17  (1 
^  6tats.   at  L.,   83),  has  given  to  all  the  courts  of  the 

•  United  States  "power  to  grant  new  trials  in  cases  where 
there  has  been  a  trial  by  jury,  for  reasons  for  which  new 
trials  have  usually  been  granted  in  the  courts  of  law/' 

*  Parsons  v.  Bedford,  3  Pet.,  447. 

An  Act  of  the  State  of  Maryland  incorporating  the 
Bank  of  Columbia,  afterwards  included  in  the  District 
of  Columbia,  in  1793,  gave  to  the  corporation  a  sum- 
mary process  by  execution,  in  the  nature  of  an  attach- 
ment against  the  debtors  who  have,  by  an  express 
consent  in  writing,  made  the  bonds,  bills  or  notes  drawn 
by  them  negotiable  at  that  bank.  This  was  held  not 
{repugnant  to  the  Constitution  of  the  United  States  or 
the  State  of  Maryland.  The  Circuit  Court  of  the  Dis- 
trict of  Columbia  was  empowered  by  the  Act  of  1801 
(2  Stats,  at  L.,  102),  to  execute  the  provisions  of  this 
law.     Bank  of  Columbia  v.  Oakley,  4  Wheat.,  235. 

When  Louisiana  was  ceded  to  the  United  States  she 
had  and  still  retains  a  practice  unlike  the  common  law 
and  more  nearly  like  the  civil  law.  There  had  been 
created  a  territorial  district  court  by  act  of  Congress 
before  the  admission  of  Louisiana  into  the  Union.  Af- 
ter the  admission  into  the  L^nion  Congress  passed  an  act 
(4  Stats,  at  L.,  p.  62),  that  the  proceedings  in  civil  cases 
in  courts  of  the  United  States  that  now  are  or  hereafter 
may  be  established  in  the  State  of  Louisiana,  shall  be 


314  CONSTITUTIO]?^  OF  UNITED  STATES.  [Am'tS^ 

conformable  to  the  laws  directing  tlie  mode  of  practice 
in  the  district  courts  of  that  State.  This  statute  also- 
provided  for  petit  jurors  in  civil  and  criminal  cases. 
It  was  held  that  it  did  not  alter  the  appellate  jurisdic- 
tion of  the  Supreme  Court  or  give  it  power  to  re-ex- 
amine the  facts  once  tried  by  a  jury  in  an  action  at  law» 
Parsons  v.  Bedford,  3  Pet,  433. 

A  judgment  of  a  State  court  though  authorized  by 
statute,  whereby  private  property  is  taken  for  public 
use  without  compensation,  is  wanting  in  due  process  of 
law.  Chic,  B.  &  Q.  K'y  Co.  v.  Chicago,  166  U.  S.,  226. 
In  this  case  the  city  laid  a  street  across  the  grounds  of 
the  company,  the  jury  fixed  the  damages  at  one  dollar. 
The  Supreme  Court  of  the  United  States  held  the  ver- 
dict conclusive,  under  the  7th  Amendment,  though  the 
court  might  think  the  jury  erred  in  passing  on  the  facts 
as  proved. 

The  provision  that  "no  fact  tried  by  a  jury  shall  be 
otherwise  re-examined  in  any  court  of  the  United  States, 
than  according  to  the  rules  of  the  common  law,"  applies 
to  facts  tried  by  a  jury  in  a  State  court ;  and  that  part  of 
the  Act  of  March  3d,  1863,  which  provides  for  the  re- 
moval of  a  judgment  in  a  State  court,  and  in  which  the 
cause  was  tried  by  a  jury,  to  the  Circuit  Court  of  the 
United  States  for  a  re-trial  on  the  facts  and  law,  was 
contrary  to  this  provision,  and  void.  The  Justices  v. 
Murray,  9  Wall.,  274. 

The  clause  of  the  Seventh  Amendment;  that  "no  fact 


Art.  VII.]  TRIAL  BY  JURY.  315 

tried  bj  a  jury  shall  be  otherwise  re-examined  in  any 
court  of  the  United  States,  than  according  to  the  rules  of 
the  common  law,"  applies  to  cases  coming  to  the  Su- 
preme Court  of  the  United  States  from  the  highest 
courts  of  the  States  in  which  facts  have  been  found  by  a 
jury.  Chicago,  B.  &  Q.  K'y  v.  Chicago,  166  U.  S.,  226. 
The  Act  of  1850,  c.  61  (9  Stat,  at  L.,  453,  458),  ad- 
mitting Utah  as  a  territory,  enacted  "that  the  Constitu- 
tion and  laws  of  the  United  States  are  hereby  extended 
over  and  declared  to  be  in  force  in  said  Territory  of' 
Utah,  so  far  as  the  same  or  any  provision  thereof  may 
be  applicable."  A  later  act  of  Congress  (18  Stats,  at 
L.,  27),  confirmed  the  statutes  of  various  territories  "so 
far  as  they  authorized  a  uniform  course  of  proceeding 
in  all  cases  whether  legal  or  equitable,  provided,  that 
no  party  has  been  or  shall  be  deprived  of  the  right  of 
trial  by  jury  in  cases  cognizable  at  common  law." 
While  such  was  the  state  of  the  law  a  territorial  statute 
providing  that  a  verdict  in  civil  cases  might  be  ren- 
dered by  nine  or  more  members  of  the  jury,  was  held 
invalid,  as  contravening  the  Seventh  Amendment.  Am. 
Pub.  Co.  V.  Fisher,  166  U.  S.,  464.  This  implies  that 
the  substance  as  well  as  the  form  of  a  jury  trial  should 
be  preserved.  Walker  v.  South.  Pac.  K.  E.  Co.,  165 
U.  S.,  693. 


316  CONSTITUTION  OF  UNITED  STATES.         [Am'tS, 

AKTICLEVIII. 

EXCESSIVE  BAIL  AND   CKUEL  PUNISHMENTS   PROHIBITED. 

"Excessive  bail  shall  not  be  required,  nor  excessive  fines 
imposed,  nor  cruel  and  unusual  punishments  inflicted." 

What  are  excessive  fines,  cruel  or  unusual  punish- 
ments.— The  provision  that  ^'excessive  fines  shall  not  be 
imposed  nor  cruel  and  unusual  punishments  inflicted" 
applies  to  !N'ational  not  State  legislation.  Pervear  v. 
Mass.,  5  Wall.,  475. 

A  fine  of  $50  and  imprisonment  at  hard  labor  for 
three  months  as  punishment  for  selling  liquor  without 
license,  would  not  be  deemed  an  excessive  fine,  nor  a 
cruel  or  unusual  punishment.  Pervear  v.  Mass.,  5 
Wall.,  475. 

The  statute  of  'New  York  which  provides  for  capital 
punishment  by  electricity  is  not  forbidden  by  this  sec- 
tion.    In  re  Kemmler,  136  U.  S.,  436. 

The  statute  of  Utah,  while  a  territory,  provided  for 
punishment  of  capital  offenses  by  shooting,  hanging  or 
beheading,  giving  option  to  the  convict  as  to  the  mode 
he  would  select.  Held,  he  could  be  sentenced  under  this 
act,  and  the  court  can  direct  the  mode  where  the  pris- 
oner does  not  make  the  selection.  Wilkerson  v.  Utah, 
99  U.  S.,  130.  This  statute  of  March  6,  1852,  held  not 
Tepealed  by  later  act.     Id. 

The  adoption  of  the  14th  Amendment  does  not  make 


Art.  IX.]  RESERVED  RIGHTS.  317 

all  the  provisions  of  the  first  ten  amefndments  operative 
in  the  State  courts.  Maxwell  v.  Dow,  176  U.  S.,  581. 
The  first  ten  amendments  to  the  Constitution,  com- 
monly known  as  the  Bill  of  Rights,  were  not  intended 
to  lay  down  any  novel  principles  of  government,  but 
simply  embodied  certain  guaranties  and  immunities, 
which  we  had  inherited  from  our  English  ancestors; 
and  which  had  from  time  immemorial,  been  subject  to 
certain  well  recognized  exceptions.  It  was  not  intended 
in  adopting  these  amendments  to  disregard  the  excep- 
tions, which  have  always  been  recognized  as  if  form- 
ally expressed.  The  power  to  arrest  deserting  seamen 
in  the  merchant  service  and  deliver  them  on  board  their 
vessel,  is  not  a  part  of  the  "judicial  power,"  and  Con- 
gress can  confer  it  on  justices  of  the  peace,  without  vio- 
lation of  the  ten  amendments,  or  Sections  1  and  2  of 
Article  III,  conferring  judicial  power,  nor  the  13th 
Amendment.     Robertson  v.  Baldwin,  165  U.  S.,  275. 

ARTICLE  IX. 

ENUMERATED  POWERS  NO  DENIAL  OF   OTHERS  RETAINED 
BY  PEOPLE. 

"The  enumeration  in  the  Constitution,  of  certain  rights, 
shall  not  be  construed  to  deny  or  disparage  others  retained 
by  the  people." 

The  State  of  Pennsylvania  having  liens  upon  the 
lands  of  its  debtors  by  judgments  and  other  proceedings 
passed  a  special  act  subjecting  the  lands  to  sale  on  pro* 


318  OONSTITUTIOI^  OF  UNITED  STATES.  [Am'tS, 

cess  to  be  issued  bj  the  Governor,  to  satisfy  the  debts, 
there  being  no  other  mode  under  the  laws  then  existing 
to  satisfy  the  debts.  It  was  contended  that  this  law  vio- 
lated the  9th  Amendment,  as  well  as  the  6th  and  7th,  but 
the  answer  of  the  court  was  that  those  amendments  did 
not  apply  to  the  States.  Livingston's  Lessee  v.  Moore, 
T  Pet,  469. 

"The  most  cursory  glance  at  these  articles  discloses  a 
unity  of  purpose,  when  taken  in  connection  with  the 
history  of  the  times,  which  can  not  fail  to  have  an  im- 
portant bearing  on  any  question  of  doubt  concerning 
their  true  meaning.  !N"or,  can  such  doubts,  when  any 
reasonably  exist,  be  safely  and  rationally  solved  without 
a  reference  to  that  history;  for  in  it  is  found  the  oc- 
casion and  necessity  for  recurring  again  to  the  great 
source  of  power  in  this  country,  the  people  of  the  States, 
for  additional  guaranties  of  human  rights;  additional 
powers  to  the  Federal  government ;  additional  restraints 
upon  those  of  the  States."  Slaughter-House  Cases,  16 
Wall.,  36,  37. 

AETICLE  X. 

EESEKVED  POWERS. 

"The  powers  not  delegated  to  the  United  States  by  the 
Constitution,  nor  prohibited  by  it  to  the  States,  are  re- 
served to  the  States  respectively,  or  to  the  people." 

The  general  government  and  the  States,  although 
both  exist  within  the  same  territorial  limits,  are  sepa- 


Art.  X.]  KESERVED  POWERS.  319 

Tate  and  distinct  sovereignties  acting  separately  and  in- 
dependently of  each  other  within  their  respective 
spheres.  The  former  in  its  appropriate  sphere  is  su- 
preme ;  but  the  States  within  the  limits  of  their  powers 
not  granted,  or,  in  the  language  of  the  10th  Amendment, 
"reserved/'  are  as  independent  of  the  general  govern- 
ment as  that  government  within  its  sphere  is  indepen- 
dent of  the  States.  And  Congress  can  not  under  the 
Constitution  impose  a  tax  upon  the  salary  of  an  officer 
of  the  State.  Collector  v.  Day,  11  Wall,  113.  See, 
Ableman  v.  Booth,  21  How.,  506. 

This  provision  applied  in  sustaining  a  municipal 
ordinance  of  !N^ew  Orleans,  which  authorized  the  collec- 
tion of  wharfage.  Ouichita  Packet  Co.  v.  Aiken,  121 
U.  S.,  444.  See,  ante,  p.  71.  The  ordinance  was 
found  not  contrary  to  the  Constitution  or  any  law  of  the 
United  States. 

The  Supreme  Court  in  holding  the  act  of  the  State  of 
"New  York,  which  required  all  ships  or  vessels  entering 
the  port  of  l!^ew  York  to  pay  a  certain  tax  per  ton,  void 
as  a  duty  on  tonnage,  say  that  it  is  prohibited  to  the 
States.  Inman  Steamship  Co.  v.  Tinker,  94  U.  S., 
238. 

"No  mode  is  provided  by  the  Constitution  and  laws  of 
the  United  States  by  which  a  person,  unlawfully  ab- 
ducted from  one  State  to  another,  and  held  in  the  latter 
State  upon  process  of  law  for  an  offense  against  the 
State,  can  be  restored  to  the  State  from  which  he  was  ab- 


320  CONSTITUTIOI^  OF  UNITED  STATES.         [Am'tS^ 

ducted ;  and  such  person  can  not  be  discharged  on  a  writ 
of  habeas  corpus  from  a  Federal  court.  Mahon  v. 
Justice,  127  U.  S.,  700. 

The  statutes  of  the  United  States  are  as  much  the  law 
of  the  land  in  any  State  as  are  those  of  the  State ;  and 
although  exclusive  jurisdiction  for  their  enforcement 
may  be  given  to  the  Federal  courts,  yet  where  it  is  not 
given,  either  expressly  or  by  necessary  implication,  the 
State  courts  having  competent  authority,  may  be  re- 
sorted to.  Claflin  V.  Houseman,  93  U.  S.,  130.  An 
assignee  in  bankruptcy  may  sue  in  a  State  court,  to  re- 
cover the  assets  of  the  bankrupt,  no  exclusive  jurisdic- 
tion having  been  conferred  on  the  courts  of  the  United 
States.     Id. 

This  clause  finds  illustration  in  the  case  of  State  law 
punishing  the  offefnse  of  passing  counterfeit  coin,  which 
is  also  a  violation  of  the  statutes  of  the  United  States. 
It  was  held  not  prohibited  to  the  States  to  so  punish. 
Fox  V.  Ohio,  5  How.,  410,  432. 

The  statutes  of  the  State  of  Maryland  protecting  the 
oyster  fisheries  of  the  Chesapeake  Bay,  were  held  not  to 
contravene  the  Constitution  or  any  law  of  the  United 
States.     Smith  v.  Maryland,  17  How.,  71. 

A  license  from  the  Federal  government  under  the  in- 
ternal revenue  acts,  does  not  work  a  prohibition  to  the 
State  to  pass  laws  regulating  or  forbidding  the  sale  of 
intoxicating  liquors.  Pervear  v.  Commonwealth,  5 
Wall.,  71 ;  License  Tax  Cases,  5  Wall.,  462. 

The  statutes  of  Indiana  which  require  telegraph  com- 


Art.  XI.]  JUDICIAL  POWER  LIMITED.  321 

panies  to  deliver  despatches  by  messenger  to  persons  to 
whom  addressed  or  their  agents,  provided  they  reside 
within  one  mile  of  the  telegraph  station,  or  within  the 
city  or  town  where  the  station  is,  were  held  void,  as  in 
conflict  with  the  interstate  commercial  power  granted  to 
Congress,  in  so  far  as  the  statutes  attempt  to  regulate 
the  delivery  of  despatches  sent  from  other  States.  W. 
U.  Tel.  Co.  V.  Pendleton,  122  U.  S.,  347. 

The  powers  of  the  general  government  are  made  up 
of  concessions  from  the  several  States — whatever  is  not 
expressly  given  the  latter  expressly  reserve.  The  ju- 
dicial power  of  the  United  States  is  a  constituent  part 
of  these  concessions — that  power  is  to  be  exercised  by; 
the  courts  organized  for  the  purpose,  and  brought  into 
existence  by  an  effort  of  the  legislative  power  of  the 
Union.  All  the  other  courts  (except  the  Supreme 
Court)  of  the  United  States  possess  no  jurisdiction  but 
what  is  given  them  by  the  power  that  creates  them,  and 
can  be  vested  with  none  but  what  the  power  ceded  to  the 
general  government  will  authorize  them  to  confer. 
United  States  v.  Hudson,  7  C ranch,  32. 

ARTICLE  XL 

JUDICIAL  POWER  LIMITED  AS  TO  SUITS  AGAINST  STATES. 

"The  judicial  power  of  the  United  States  shall  not  be 
construed  to  extend  to  any  suit  in  law  or  equity,  com- 
menced or  prosecuted  against  one  of  the  United  States  by 
citizens  of  another  State,  or  by  citizens  or  subjects  of  any 
foreign  State." 
21 


322  COXSTITUTIOI!^  OF  UIs^ITED  STATES.  [Am'tS, 

The  adoption  of  tlie  11th  Amendment  by  the  constitu- 
tional number  of  States  operated  to  deprive  the  Su- 
preme Court  of  jurisdiction  over  suits  against  a  State 
by  citizens  of  another  State;  and  suits  pending  at  the 
time  of  its  adoption  could  be  no  further  prosecuted. 
HoUings worth  v.  Virginia,  3  DalL,  378.  ^N^or  could 
new  suits  be  instituted.  Hans  v.  Louisiana,  134  U.  S., 
11. 

The  11th  Amendment  does  not  operate  to  prevent 
counties  in  a  State  from  being  sued  in  the  Federal 
courts.  This  amendment  limits  the  jurisdiction  only 
as  to  suits  against  a  State.  Lincoln  County  v.  Luning, 
133  U.  S.,  529.  A  State  statute  which  attempts  to  ex- 
emj)t  counties  from  liability  except  in  the  courts  of  the 
county  can  not  defeat  the  jurisdiction  given  by  the  Con- 
stitution to  the  Federal  courts.     Id. 

A  suit  in  equity  against  a  board  of  canal  commission- 
ers, brought  by  one  who  has  purchased  State  lands,  to 
restrain  alleged  violations  of  the  purchaser's  right  un- 
der his  contract  of  purchase,  is  not  a  suit  against  the 
State  within  the  meaning  of  the  11th  Amendment. 
Pennoyer  v.  Connaughty,  140  L^.  S.,  1.  See,  ante, 
p.  226. 

A  circuit  court  of  the  United  States,  in  a  proper 
case  in  equity,  may  enjoin  a  State  officer  from  executing 
a  State  law  in  conflict  with  the  Constitution  or  a  statute 
of  the  United  States,  when  such  execution  will  violate 
the  rights  of  the  complainant.     Where  the  State  is  con- 


Art.  XL]  JUDICIAL  POWER  LIMITED.  323 

cerned  it  should  be  made  a  party,  if  it  can  be  done. 
That  it  can  not  be  done  is  a  sujficient  reason  for  not 
doing  it  and  the  case  may  proceed  to  a  decree  without 
the  State  being  a  party.  In  deciding  who  are  parties 
to  the  suit  the  court  need  not  look  beyond  the  record. 
Making  a  State  officer  a  party  is  not  making  the  State 
a  party,  although  her  law  may  prompt  his  action  and 
she  may  stand  behind  him  as  the  real  party  in  interest. 
Osborn  v.  Bank,  9  Wheat.,  846 ;  Davis  v.  Gray,  16 
Wall,  203. 

Under  this  amendment  a  citizen  of  a  State  can  not  sue 
his  own  State  in  the  Federal  courts.  Hans  v.  Louisiana, 
134  U.  S.,  1 ;  :N'orth  Carolina  v.  Temple,  134  U.  S.,  22. 

A  bank  or  other  corporation,  wherein  a  State  is  one  of 
the  corporators  or  the  sole  corporator,  may  be  sued  by  a 
citizen  of  another  State.  The  State  puts  off  its  sover- 
eignty when  it  becomes  a  stockholder.  Curran  v.  Bank 
of  Arkansas,  15  How.,  304. 

Suits  against  State  hoards  or  officers. — In  Osborne  v. 
Bank  of  the  United  States,  9  Wheat.,  738,  it  was  held 
as  above  indicated,  viz. :  that  where  the  State  was  not 
a  party  to  the  record,  the  action  could  be  maintained. 
But  in  later  cases  this  doctrine  has  been  overruled.  In 
Louisiana,  107  U.  S.,  711,  it  was  held  that  a  mandamus 
would  not  lie  to  compel  a  board  which  held  in  trust  cer- 
tain funds  for  payment  to  the  creditors  of  the  State  to 
pay  them  contrary  to  a  direction  by  the  State  legislature, 
as  the  funds  were  State  funds  and  the  suit  was  against 


324  coisrsTiTUTioN  of  united  states.       [Am'ts, 

the  State  though  not  a  party  of  record.  So,  In  re  Ayres, 
123  IT.  S.,  443,  it  was  held,  where  the  State  of  Virginia 
had  directed  its  Attorney  General  to  sue  certain  tax  pay- 
ers, where  they  had  tendered  tax-receivable  coupons, 
a  creditor  filed  a  bill  in  the  Federal  court  and  obtained 
an  injunction  enjoining  the  Attorney  General  of  the 
State  from  prosecuting  such  suits.  The  Attorney  Gen- 
eral disregarded  the  injunction,  and  the  judge  of  the 
United  States  court  out  of  which  the  injunction  was 
issued,  fined  and  imprisoned  the  Attorney  General  for 
contempt.  The  Supreme  Court  discharged  him  on 
the  ground  that  the  suit  for  such  injunction  was  really 
against  the  State  and  could  not  be  maintained  in  the 
Federal  court.  This  was  followed  in  McGahey  v. 
Virginia,  135  U.  S.,  562,  and  Pennoyer  v.  Virginia, 
140  U.  S.,  1. 

So,  further,  it  was  held  that  when  a  suit  is  brought  in 
a  court  of  the  United  States  to  enforce  performance  of  a 
contract  made  by  the  State  and  the  validity  of  the  con- 
tract is  the  question  in  controversy,  and  the  remedy 
sought  is  by  the  State,  the  ofiicers  as  nominal  defendants 
having  no  personal  interest  in  the  suit,  but  defending 
only  as  representatives  (yi  the  State,  the  State  is  the  real 
party  and  the  suit  is  prohibited  by  the  11th  Amendment. 
Hagood  V.  Southern,  117  U.  S.,  52. 

A  Federal  court  is  without  jurisdiction  of  a  suit  by  a 
private  person  against  the  executive  ofiicers  of  a  State 
to  test  the  constitutionality  of  a  statute  or  enjoin  its  en- 


Art.  XI.]  JUDICIAL  POWER  LIMITED.  325 

forcement,  where  the  defendants  are  by  the  statute 
charged  with  no  duty  and  have  done  and  attempted  to  do 
nothing  to  the  harm  of  the  plaintiff.  Such  action  is  in 
effect  against  the  State.  Fitts  v.  McGhee,  172  U.  S., 
516. 

But  where  a  State  by  its  officer  seizes  the  property 
of  a  citizen,  in  violation  of  his  rights  under  the  Consti- 
tution, the  officer  can  be  sued,  and  can  not  plead  that 
the  act  is  that  of  the  State,  because  the  State  can  not 
authorize  an  unconstitutional  act.  The  action  is 
against  the  officer  as  a  wrong-doer,  and  not  against  the 
State.  Coupon  Cases,  114  U.  S.,  269 ;  Cunningham  v. 
E.  R  Co.,  109  U.  S.,  453;  Tomlinson  v.  Branch,  15 
Wall.,  460 ;  Board  of  Liquidation  v.  McComb,  92  U.  S., 
531. 

Suits  in  the  Supreme  Court  hy  one  State  against  an- 
other.— The  State  of  Louisiana  filed  a  bill  against  Texas, 
her  Governor  and  health  officer,  alleging  that  the  latter 
State  had  granted  its  Governor  and  health  officer  ex- 
tensive powers  to  maintain  quarantine  over  infectious 
diseases,  which  power  was  purposely  exercised  to  build 
up  commerce  in  Texan  cities  to  the  detriment  of  E'ew 
Orleans.  A  decree  was  prayed  for  that  neither  the 
State  of  Texas  nor  her  Governor  nor  health  officer  have 
the  right  under  an  exercise  of  police  or  quarantine 
powers  to  declare  and  enforce  an  embargo  against 
interstate  commerce  nor  to  discriminate  against  Louisi- 


326  CONSTITUTION  OF  UNITED  STATES.  [Am'tS, 

ana  in  such  regulations.     The  bill,  on  demurrer,  was 
dismissed  for  want  of  jurisdiction,  because — 

(1)  In  order  to  maintain  jurisdiction  it  must  ap- 
pear that  the  controversy  to  be  determined  was  directly 
between  State  and  State  and  not  in  vindication  of  the 
grievances  of  particular  individuals;  and  that  in  this 
case  the  State  presented  herself  as  parens  patriae, 
guardian  or  representative  of  her  citizens;  and  (2)  that 
the  bill  failed  to  show  that  the  State  of  Texas  had  so  au- 
thorized or  confirmed  the  act  of  her  health  officer  as  to 
make  it  her  own ;  (3)  that  the  court  was  unable  to  hold 
that  the  bill  presented  a  case  in  controversy  between  a 
State  and  citizens  of  another  State,  or,  (4)  that  it  could 
be  maintained  as  a  suit  against  the  health  officer  alone 
on  the  theory  that  he  had  acted  in  excess  of  or  violation 
of  a  valid  law  of  the  State.  Louisiana  v.  Texas,  176 
U.  S.,  1.  The  previous  cases  are  cited  and  explained  in 
this  case.     See,  ante,  p.  207. 

AKTICLE  XII. 

TWELFTH  AMENDMENT. 

Article  XII  of  the  amendments  is  given  in  connection 
with  the  part  of  the  original  Constitution  amended  by  it. 


Art.  XIII.]  SLAVERY  PROHIBITED.  327 


ARTICLE  XIII. 

SLAVERY  PROHIBITED. 

Section  1.  "Neither  slavery  nor  involuntary  servitude, 
except  as  a  punishment  for  crime  whereof  the  party  shall 
have  been  duly  convicted,  shall  exist  within  the  United 
States,  or  any  place  subject  to  their  jurisdiction. 

Section  2.  "Congress  shall  have  power  to  enforce  this* 
article  by  appropriate  legislation." 

Decisions  explanatory  of  the   Thirteenth  Amendment. 

The  Thirteenth  Amendment  relates  only  to  slavery 
and  the  involuntary  servitude  which  it  abolishes;  and 
thus  establishes  universal  freedom  in  the  United  States ; 
and  Congress  may  lawfully  pass  laws  directly  enforcing 
its  provisions ;  but  this  legislative  power  extends  only  to 
slavery  and  its  incidents;  and  the  denial  of  equal  ac- 
commodations in  inns,  public  conveyances,  and  places  of 
public  amusement  imposes  no  badge  of  slavery  or  in- 
voluntary servitude  upon  the  party,  but  at  most  in- 
fringes rights  which  by  the  Fourteenth  Amendment  are 
protected  from  State  aggression.  Civil  Rights  Cases, 
109  U.  S.,  3. 

"One  great  purpose  of  these  (Thirteenth  and  Four- 
teenth) Amendments  was  to  raise  the  colored  race  from 
that  condition  of  inferiority  and  servitude  in  which  most 
of  them  had  previously  stood,  into  perfect  equality  of 


328  COIs^STITUTION  OF  UIV^ITED  STATES.  [Am'tS, 

civil  rights  with  all  other  persons  within  the  jurisdiction, 
to  take  away  all  possibility  of  oppression  by  law  because 
of  race  or  color.  They  were  intended  to  be,  what  they 
really  are,  limitations  of  the  power  of  the  States  and  en- 
largements of  the  power  of  Congress.  They  are  to  some 
extent  declarations  of  rights,  and  though  in  form  pro- 
hibitions, they  imply  immunities,  such  as  may  be  pro- 
tected by  congressional  legislation."  Ex  'parte  Vir- 
ginia, 100  U.  S.,  339,  344. 

An  examination  of  the  history  of  the  causes  which  led 
to  the  adoption  of  these  amendments  demonstrates  that 
the  main  purpose  of  all  the  last  three  amendments  was 
the  freedom  of  the  African  race,  the  security  and  per- 
petuation of  that  freedom,  and  their  protection  from  the 
oppressions  of  the  white  man  who  had  formerly  held 
them  in  slavery.  In  construing  them  it  is  necessary  to 
liave  in  view  the  main  purposes,  though  the  letter  and 
spirit  of  those  articles  must  apply  to  all  cases  coming 
"within  their  purview,  whether  the  party  concerned  be 
of  African  descent  or  not.  The  Thirteenth  Amend- 
ment, primarily  intended  to  abolish  slavery,  equally  for- 
bids Mexican  peonage  or  the  Chinese  Cooley  trade, 
when  they  amount  to  slavery  or  involuntary  servitude; 
and  the  use  of  the  word  "servitude"  is  intended  to  pro- 
hibit all  forms  of  involuntary  servitude  of  every  class 
of  men.     Slaughter-House  Cases,  16  Wall.,  36. 

A  person  in  Arkansas,  one  of  the  late  slave-holding 
States,  for  a  valuable  consideration,  passed  in  March, 


Art.  XIII.]  SLAVERY  PROHIBITED.  329 

1861,  before  the  Eebellion  bad  broken  out,  sold  a  negro 
slave  which  he  then  had,  in  the  bill  of  sale  warranting 
the  said  negro  to  be  a  slave  for  life,  and  also  warrant- 
ing the  title  to  be  clear  and  perfect.  The  Thirteenth 
Amendment  subsequently  made  operated  to  give  this 
slave  his  freedom.  In  an  action  brought,  after  the 
amendment,  upon  the  promissory  note  given  for  the 
slave,  the  defendant  pleaded  the  warranty  that  the  negro 
was  a  slave  for  life.     Held,  by  the  Supreme  Court : — 

1.  That  slavery  having  been  lawful  in  Arkansas 
when  the  contract  was  made,  the  contract  was  legal. 

2.  That  the  right  to  sue  upon  it  was  not  taken  away 
by  the  Thirteenth  Amendment,  as  the  destruction  of 
vested  rights  can  not  be  presumed  to  result  by  implica- 
tion. 

3.  That  the  warranty  of  the  negro  as  a  slave  for  life 
was  not  a  warranty  of  continuity  of  title  against  the  acts 
of  sovereign  power.  Osborn  v.  Livingston,  13  Wall., 
654. 

The  Act  of  Congress  of  March  1st,  1865  .(18th  Stats, 
at  L.,  part  3,336),  which  enacts  that  no  citizen  possess- 
ing all  the  other  qualifications  which  are  or  may  be 
prescribed  by  law,  shall  be  disqualified  from  service  as 
grand  or  petit  juror  in  any  court  of  the  United  States 
or  of  any  State,  on  account  of  race,  color  or  previous 
condition  of  servitude;  and  making  it  a  misdemeanor 
to  exclude  or  fail  to  summon  them  for  that  cause,  was 
held  constitutional.     Ex  'parte  Virginia,  100  U.  S.,  339. 


330  CONSTITUTION  OF  UNITED  STATES.  [Am'tS, 

This  case  arose  as  follows :  Judge  Coles  was  indicted  in 
one  of  the  district  courts  of  the  United  States  for  Vir- 
ginia, charged  with  excluding  jurors  because  they  were 
colored  men  and  ex-slaves.  The  matter  was  brought  be- 
fore the  Supreme  Court,  to  test  the  validity  of  the  Act 
of  Congress,  which  the  judge  was  charged  with  violat- 
ing.    Id. 

Exclusion  of  colored  persons  from  grand  jury. — 
Finding  an  indictment  against  a  negro  in  a  State  court, 
by  a  grand  jury  from  which  colored  men  are  excluded 
solely  because  of  their  race  or  color,  denies  him  the 
equal  protection  of  the  laws,  whether  done  by  the  ac- 
tion of  the  legislature,  through  the  courts,  or  by  the 
executive  or  administrative  officers  of  the  State.  Car- 
ter V.  Texas,  177  U.  S.,  442 ;  Strauder  v.  West  Virginia, 
100  U.  S.,  303 ;  A^eal  v.  Delaware,  103  U.  S.,  370,  397; 
Gibson  V.  Miss.,  162  U.  S.,  565 ;  Virginia  v.  Eives,  100 
U.  S.,  315 ;  Ex  parte  Virginia,  100  U.  S.,  339. 

ARTICLE   XIV. 

CITIZENSHIP   AND   CIVIL   RIGHTS. 

Section  1.  "All  persons  born  or  naturalized  in  the 
United  States,  and  subject  to  the  jurisdiction  thereof,  are 
citizens  of  the  United  States  and  of  the  State  wherein 
they  reside.  No  State  shall  make  or  enforce  any  law  . 
which  shall  abridge  the  privileges  or  immunities  of 
citizens  of  the  United  States;  nor  shall  any  State  deprive 


Art.  XIV.]   CITIZEIN'SIIIP  AND  CIVIL  EIGHTS.  331 

any  person  of  life,  liberty,  or  property,  without  due  pro- 
cess of  law;  nor  deny  to  any  person  within  its  jurisdiction 
the  equal  protection  of  the  laws. 

Section  2.  "Representatives  shall  be  apportioned 
among  the  several  States  according  to  their  respective 
numbers,  counting  the  whole  number  of  persons  in  each 
State,  excluding  Indians  not  taxed.  But  when  the  right 
to  vote  at  any  election  for  the  choice  of  Electors  for  Presi- 
dent and  Vice-President  of  the  United  States,  Representa- 
tives in  Congress,  the  executive  and  judicial  officers  of  a 
State,  or  the  members  of  the  Legislature  thereof,  is  denied 
to  any  of  the  male  inhabitants  of  such  State,  being  twenty- 
one  years  of  age  and  citizens  of  the  United  States,  or  in 
any  way  abridged,  except  for  participation  in  rebellion  or 
other  crime,  the  basis  of  representation  therein  shall  be 
reduced  in  the  proportion  which  the  number  of  such  male 
citizens  shall  bear  to  the  whole  number  of  male  citizens 
twenty-one  years  of  age  in  such  State. 

Section  3.  "No  person  shall  be  a  Senator  or  Representa- 
tive in  Congress,  or  Elector  of  President  and  Vice-Presi- 
dent, or  hold  any  office,  civil  or  military,  under  the  United 
States,  or  under  any  State,  who,  having  previously  taken 
an  oath,  as  a  member  of  Congress,  or  as  an  officer  of  the 
United  States,  or  as  a  member  of  any  State  Legislature,  or 
as  an  executive  or  judicial  officer  of  any  State,  to  support 
the  Constitution  of  the  United  States,  shall  have  engaged 
in  insurrection  or  rebellion  against  the  same,  or  given  aid 
or  comfort  to  the  enemies  thereof.  But  Congress  may,  by  a 
vote  of  two-thirds  of  each  House,  remove  such  disability. 


332  CONSTITUTION  OF  UNITED  STATES.  [Am'tS, 

Section  4.  "The  validity  of  the  public  debt  of  the 
United  States  authorized  by  law,  including  debts  incurred 
for  payment  of  pensions  and  bounties  for  service  in  sup- 
pressing insurrection  or  rebellion,  shall  not  be  questioned. 
But  neither  the  United  States,  nor  any  State  shall  assume 
or  pay  any  debt  or  obligation  incurred  in  aid  of  insur- 
rection or  rebellion  against  the  United  States,  or  any 
claim  for  the  loss  or  emancipation  of  any  slave;  but  all 
such  debts,  obligations,  and  claims  shall  be  held  ille- 
gal and  void. 

Section  5.  "The  Congress  shall  have  power  to  enforce, 
by  appropriate  legislation,  the  provisions  of  this  article." 

Citizenship — Indians  when  not  citizens, — An  In- 
dian,, born  a  member  of  one  of  the  Indian  tribes  within 
the  United  States,  which  still  exists  and  is  recognized  by 
the  government  as  a  tribe,  and  who  has  voluntarily  sepa- 
rated himself  from  his  tribe,  and  taken  np  his  residence 
among  the  white  citizens  of  a  State,  but  who  has  not 
been  naturalized  or  taxed  or  recognized  as  a  citizen, 
either  by  the  United  States  or  by  the  State,  is  not  a 
citizen  of  the  United  States,  within  the  meaning  of  the 
1st  section  of  the  Fourteenth  Amendment.  Elk  v.  Wil- 
kins,  112  U.  S.,  94. 

"All  persons  born  or  naturalized  in  the  United  States 
and  subject  to  the  jurisdiction  thereof  are  citizens  of 
the  United  States  and  of  the  States  wherein  they  re- 
side." They  may  be  citizens  of  the  United  States  and 
not  be  citizens  of  any  State.    Slaughter-House  Cases,  16 


Art.  XIV.]  CITIZENSHIP.  333 

Wall.,  36,  T4.  The  same  person  may  be  at  tlie  same 
time  a  citizen  of  the  United  States  and  a  citizen  of  a 
State ;  but  bis  rights  of  citizenship  under  one  of  these 
governments  will  be  different  from  those  he  has  under 
the  other.  United  States  v.  Cruikshank,  92  U.  S.,  542. 
Does  not  confer  female  suffrage. — A  provision  in  a 
State  Constitution  which  confers  the  right  of  voting  to 
"male  citizens  of  the  United  States,"  does  not  violate 
the  Federal  Constitution.  Minor  v.  Happersett,  21 
Wall.,  162.  The  amendment  does  not  add  to  the  priv- 
ileges and  immunities  of  citizens.  It  simply  furnished 
an  additional  guaranty  for  the  protection  of  such  as  they 
already  had.  At  the  time  of  the  adoption  of  this  amend- 
ment suffrage  was  not  co-extensive  with  citizenship,  nor 
were  the  terms  co-extensive  at  the  time  of  the  adoption 
of  the  Constitution.     Id.,  92  U.  S.,  542: 

iN'oTE. — Most  of  the  decisions  on  the  question  of  citi- 
zenship arise  under  the  naturalization  laws,  and  no  at- 
tempt is  here  made  to  collate  them. 

DECISIONS  RELATING  TO  TPIE  14tH  AMENDMENT. 

I.  Operative  against  States,  not  individuals. 

The  14th  Amendment  is  prohibitory  upon  the  Statea 
only,  and  the  legislation  authorized  to  be  adopted  by 
Congress  is  not  direct  legislation  on  the  matters  respect- 
ing which  the  States  are  prohibited  from  making  or  en- 
forcing certain  laws,  or  doing  certain  acts,  but  is  cor- 
rective legislation,  such  as  may  be  necessary  or  proper 
for  counteracting  or  redressing  such  laws. 


334  COIS'STITUTION  OF  UNITED  STATES.  [Am'tS, 

The  1st  and  2(i  sefctions  of  the  Civil  Eights  Act, 
passed  March  1st,  1875  (18  Stats,  at  L.,  335),  which 
undertakes  to  declare  all  persons  within  the  jurisdiction 
of  the  United  States  entitled  to  the  full  and  equal  en- 
joyment of  the  accommodations,  advantages,  facilities 
and  privileges  of  inns,  public  conveyances  on  land  or 
water,  theaters  and  other  places  of  public  amusement, 
subject  only  to  the  conditions  and  limitations  estab- 
lished by  law,  and  applicable  alike  to  citizens  of  every 
race  and  color,  regardless  of  previous  condition  or  servi- 
tude, and  punish  the  denial  of  such  enjoyment  by  fine 
or  imprisonment,  held  unconstitutional;  as  such  power 
to  deal  with  individuals  directly  for  refusing  or  denying 
such  privileges  and  enjoyments  was  not  conferred  on 
Congress  by  the  amendment.  The  14th  Amendment 
protects  the  civil  rights  of  the  people  of  the  class  af- 
fected from  State  aggression.  Civil  Rights  Cases,  109 
r.  S.,  3. 

II.  Discrimination  hy  State  laws  against  colored  citi- 
zens. 

The  14th  Amendment  was  one  of  a  series  of  constitu- 
tional provisions  having  a  common  purpose ;  namely,  to 
secure  to  a  recently  emancipated  race  all  of  the  civil 
rights  the  superior  race  enjoyed,  and  to  give  it  the  pro- 
tection of  the  general  government  in  the  enjoyment  of 
such  rights,  whenever  they  should  be  denied  by  the 
States. 

A  statute  of  West  Virginia,  which,  in  effect,  singles 


Art.  XIV.]  CIVIL  EIGHTS.  335 

out  and  denies  to  colored  citizens  the  right  of  sitting  as 
jurors,  because  of  their  color,  though  qualified  in  all 
other  respects,  is  a  ban  upon  thein  and  a  discrimina- 
tion against  them,  which  is  forbidden  by  the  amend- 
ment. The  Revised  Statutes  of  the  United  States,  Sec. 
641,  which  provides  for  the  removal  of  any  civil  suit  or 
criminal  prosecution  from  the  State  to  the  Federal 
courts  when  the  party  against  whom  the  cause  is  pend- 
ing, is  denied  or  can  not  enforce  any  right  secured  to 
him  by  the  Civil  Eights  Act  as  a  citizen  of  the  United 
States,  and  prescribes  the  method  for  such  removal, 
is  a  valid  act.  Strauder  v.  West  Virginia,  100  U.  S., 
303  ;  Virginia  v.  Rives,  100  U.  S.,  313. 

The  provisions  of  the  14th  Amendment  have  exclusive 
reference  to  the  State  action.  It  is  the  State  which  is 
prohibited  from  denying.     Id. 

When  in  a  judicial  proceeding  a  person  is  defnied  any 
-civil  right  secured  by  the  within  amendments,  after  it 
is  too  late  to  remove  the  same  to  the  Federal  courts  for 
trial,  the  final  judgment  of  the  highest  court  may  be  re» 
viewed  by  the  Supreme  Court.     Id. 

Congress  may  enforce  the  prohibition  of  this  section, 
whenever  they  are  disregarded  by  either  the  legislature, 
the  executive,  or  judicial  departments  of  a  State.  The 
mode  of  enforcement  is  left  to  the  discretion  of  Con- 
gress. It  may  enforce  it  by  providing  for  the  removal 
of  the  case  into  the  Federal  courts  from  the  State  court 


336  CONSTITUTION  OF  UNITED  STATES.  [Am'tS^ 

where  the  right  is  denied.  Virginia  v.  Eives,  100  U.  S.^ 
313. 

The  defendant  accused  of  crime  and  prosecuted  in  a 
State  court,  himself  a  colored  man,  was  about  to  be  tried. 
He  asked  that  one-third  of  the  panel  of  jurors  be  men  of 
his  own  race.  The  denial  of  this  motion  did  not  deny 
him  any  right  secured  by  these  amendments.  It  ap- 
peared that  the  jurors  had  been  called  by  the  venire, 
without  any  discrimination,  from  both  races.  And  this 
was  all  that  he  was  entitled  to.  He  could  not  claim  that 
a  part  of  the  jury  which  tried  him  should  be  colored 
men.     Virginia  v.  Eives,  100  U.  S.,  313. 

Where  a  cause  has  been  removed  from  a  State  into  a 
Federal  court  on  the  erroneous  ground  that  civil  rights 
were  denied,  the  Supreme  Court  granted  a  mandamus 
to  the  judge  of  the  Federal  court,  on  examining  the 
case  and  finding  that  no  civil  right  was  infringed,  com- 
manding him  to  remand  the  cause.     Id. 

When  a  State,  by  action  of  its  legislature,  courts,  or 
executive  or  administrative  officers  debars  persons  of 
the  African  race  from  serving  as  grand  jurors  in  the 
criminal  prosecution  of  a  person  of  that  race,  such  per- 
son so  prosecuted  is  denied  the  equal  protection  of  the 
laws.  When  denied  the  right  of  challenge  to  a  grand 
juror  thus  selected,  the  objection  may  be  taken  by  plea  in 
abatement  or  motion  to  quash  the  indictment,  before 
pleading  in  bar.  The  question  whether  his  constitu- 
tional right  was  pleaded  and  brought  to  the  notice  of  the 


Art.  XI v.]      EQUAL  PROTECTION  OF  LAWS.  337 

State   court   is  itself   a   Federal   question.     Carter   v. 
Texas,  177  U.  S.,  442. 

Education  of  colored  children. — A  board  of  education 
maintained  a  high  school  for  white  children;  but  tem- 
porarily suspended  a  similar  school  for  colored  children 
for  economic  reasons.  It  was  prayed  that  the  board  be 
enjoined  from  maintaining  a  school  for  white  children. 
It  appeared  that  no  hostility  to  the  colored  race  actuated 
the  board;  and  the  action  was  not  deemed  a  denial  of 
the  equal  protection  of  the  laws  or  of  any  privilege  be- 
longing to  the  colored  people  complaining  within  the 
meaning  of  the  14th  Amendment.  Gumming  v.  Rich- 
mond Co.  Board  of  Education,  175  U.  S.,  528. 

III.  Instances  where  the  statutes  of  States  have  been 
held  as  void  because  denying  the  equal  protection  of  the 
laws. 

Police  regulation  as  to  boundaries. — A  municipal 
ordinance  forbade  persons  from  carrying  on  the  laundry 
business  within  corporate  limits  without  having  first  ob- 
tained the  consent  of  the  board  of  supervisors,  thus 
making  an  arbitrary  and  unjust  discrimination  founded 
on  diiference  of  race,  between  persons  otherwise  in  sim- 
ilar circumstances.  This  ordinance  was  aimed  at  the 
Chinese  in  San  Francisco.  It  violates  the  guaranties  of 
the  14th  Amendment,  which  extends  to  all  persons  the 
equal  protection  of  the  laws.  Yick  Wo  v.  Hopkins,  118 
U.  S.,  356. 

Discrimination  against  non-resident  creditors, — XJn* 
22 


338  COK^STITUTION  OF  UNITED  STATES.  [Amt's, 

secured  non-resident  creditors,  citizens  of  other  States, 
of  a  foreign  corporation  doing  business  in  a  State,  are  en- 
titled to  share  in  the  distribution  of  its  assets  on  the 
same  footing  with  creditors  residing  in  the  State.  An 
act  of  the  State  of  Tennessee  giving  priority  to  creditors 
within  the  State  over  non-resident  creditors  by  simple 
contract  debt,  and  over  judgment  or  mortgage,  given 
after  the  local  debt  was  incurred,  was  held  violative  of 
Article  lY  and  of  the  14th  Amendment.  Sully  v.  Am. 
mt.  Bank,  178  U.  S.,  289,  following  Blake  v.  McClung, 
172  U.  S.,  239, 176  U.  S.,  59. 

IV.  Statutes  limiting  the  rates  carriers  may  charge, 
held  void  as  depriving  them  of  a  reasonable  profit. 

The  sale  of  tickets — Michigan  act  void. — The  statute 
t)f  Michigan  requiring  the  railroad  companies  to  sell 
1000-mile  tickets  at  less  than  the  specified  rates,  and  to 
be  good  for  two  years,  is  taking  the  property  of  the  cor- 
poration without  due  process  of  law.  Lake  Shore,  etc., 
K'y  Co.  V.  Smith,  173  U.  S.,  684. 

Can  not  reduce  rates  to  deprive  of  a  profit. — While  a 
State  can,  where  unhampered  by  contract,  fix  maximum 
rates  or  charges  for  the  railroad  companies,  such  power 
is  subject  to  the  condition  that  the  rates  must  be  such  as 
will  admit  of  the  carrier  earning  a  compensation  just  to 
it  and  to  the  public.  What  is  a  reasonable  compensa- 
tion is  a  judicial  question.  R'y  Co.  v.  Wellman,  143 
U.  S.,  339;  Eeagan  v.  Trust  Co.,  154  U.  S.,  362,  399; 


Art.  XIY.]        KEGULATION  OF  FAKES,  ETC.  339 

E'y  Co.  V.  Gill,  156  U.  S.,  649 ;  Smyth  v.  Ames,  169 
U.  S.,  466,  523. 

The  E'ebraska  law  of  April  12th,  1893,  fixing  maxi- 
mum rates  of  railroad  freights  on  local  business  is  void. 
It  is  held  to  deprive  them  of  a  reasonable  profit  on  their 
business,  which  is  depriving  them  of  their  property  with- 
out due  process  of  law.  Smyth  v.  Ames,  169  TJ.  S., 
466,  523.  This  case  reasons  out  the  subject  at  great 
length. 

A  railroad  company  is  not  protected  by  the  14th 
Amendment  in  charging  rates  for  the  purpose  of  realiz- 
ing profit  upon  fictitious  capital.  It  is  entitled  only  to 
a  fair  return  upon  the  value  of  what  is  employed  for  the 
public  convenience.  Id.  The  Nebraska  statute,  regu- 
lating and  reducing  the  rates  of  transportation  of  a  com- 
pany below  a  just  and  reasonable  rate,  was  held  void. 
The  reasonableness  of  the  rates  is  the  subject  of  ju- 
dicial inquiry.     Id.,  S.  C,  171  U.  S.,  361. 

A  State  can  not  so  reduce  local  freights  as  to  throw  an 
undue  burden  on  interstate  business  to  make  up  losses 
caused  by  such  unreasonable  local  rates.  Id.  See,  ante, 
pp.  55,  352. 

V.  Instances  where  the  statutes  of  a  State  affecting 
rates  charged  by  carriers  and  'police  regulations  concern- 
ing them  have  been  upheld, 

1.  States  may  classify  railroads. — A  State  statute 
which  classifies  the  railroad  corporations  by  the  length 
of  their  lines  fixing,  in  each  class,  a  different  limit  to  the 


340  CONSTITUTIO]^  OF  UNITED  STATES.  [Amt's, 

passenger  rates,  is  not  a  denial  of  the  equal  protection  of 
tlie  laws.     Dow  v.  Beidelman,  125  U.  S.,  680. 

2.  States  may  fix  maximum  rates  for  domestic  trans- 
portation.— The  statute  of  Arkansas  of  April  4th,  1887, 
fixed  at  three  cents  a  mile  the  maximum  fare  that  any 
railroad  corporation  may  take  for  carrying  passengers 
within  the  State.  This  was  not  a  taking  of  property 
without  due  process  of  law.  In  this  case,  the  course  of 
decision  by  the  court  is  fully  reviewed.  Dow  v.  Beidel- 
man,  125  U.  S.,  680. 

3.  State  may  compel  companies  to  pay  expenses  of 
railroad  commission. — The  provisions  of  the  statute  of 
South  Carolina,  that  the  expenses  of  a  railroad  commis- 
sion, created  by  State  law  and  invested  with  a  general 
supervision  over  the  railroads  in  the  State,  should  be 
borne  entirely  by  the  railroad  corporations,  held  not  to 
deprive  the  corporations  of  the  equal  protection  of  the 
laws  or  other  provisions  of  the  14th  Amendment. 
Charlotte,  etc.,  Co.  v.  Gibbes,  142  U.  S.,  386.  The  rea- 
sons assigned  for  this  decision  are  that  it  is  not  a  tax  of 
a  general  nature  imposed  upon  them ;  but  that  their  busi- 
ness is  affected  with  a  public  interest;  the  regulation 
by  a  commission  is  within  the  power  of  the  State  and  the 
exercise  of  the  duties  of  the  commission  beneficial  to  the 
public  and  also  to  the  railroad  companies.     Id. 

4.  Express  companies,  how  they  may  he  taxed. — A 
statute  of  Missouri  which  imposes  on  express  companies 
a  tax  on  "the  receipts  of  their  business  done  in  the  State" 


Art.  Xiy.]      EQUAL  PROTECTION  OF  LAWS.  341 

does  not  deprive  of  the  equal  protection  of  the  laws, 
since  that  State  has  the  right  to  tax  different  kinds  of 
property  in  different  ways ;  and  express  companies,  hav- 
ing little  or  no  tangible  property  of  their  own,  constitute 
a  separate  class  from  companies  owning  their  own 
means  of  transportation.  Pac.  Ex.  Co.  v.  Seibert,  142 
U.  S.,  339.     See,  ante,  pp.  51,  56. 

States  may  repeal  laws  exempting  from  taxation. — A 
charter  immunity  from  taxation  for  a  designated  period 
held  not  a  vested  right,  nor  within  the  clause  of  a  State 
statute  forbidding  the  amendment  or  repeal  of  a  charter 
which  would  impair  such  rights.  Citizens  Saving  Bk. 
V.  City  of  Owensboro,  173  U.  S.,  636.  See,  ante,  p.  151. 

State  may  declare  lands  forfeit  for  failure  to  report 
for  taxation, — A  law  of  West  Virginia  by  which  taxable 
lands  are  forfeited  to  the  State  for  neglect  by  the  own- 
ers for  five  consecutive  years  to  enter  them  for  taxation, 
in  cases  where  the  owner  so  owned  1,000  acres  or  more, 
but  the  law  exempted  from  such  forfeiture  owners  of 
less  than  that  quantity,  held  not  for  that  reason  to  deny 
equal  protection,  nor  take  without  due  process  of  law. 
King  V.  MuUins,  171  U.  S.,  404. 

State  can  not  grant  away  the  right  to  limit  rates. — The 
right  of  a  State  to  reasonably  limit  the  amount  of 
charges  by  a  railroad  company  for  the  transportation  of 
persons  and  property  within  its  jurisdiction  can  not  be 
granted  away  by  the  legislature  but  by  words  of  positive 
enactment.     And  where  the  charter  contains  the  clause 


342  coisrsTiTUTioi^  of  united  states.       [Amt's, 

giving  the  right  from  time  to  time  to  ^x^  regulate  and 
receive  the  tolls  and  charges  by  them  to  be  received  for 
transportation,  these  words  do  not  grant  away  the  right 
in  the  State  to  regulate  the  same  and  to  act  upon  the 
reasonableness  of  the  rates  thus  charged.  Eailroad 
Commission  Cases,  116  U.  S.,  307. 

VI.  The  police  power  of  States  not  affected  by  the 
Ufih  Amendment, 

Police  power  of  the  State  not  impaired. — The  14th 
Amendment  does  not,  impair  the  police  power  of  a  State. 
A  municipal  ordinance,  passed  under  legislative  au- 
thority to  the  municipality,  prohibiting  washing  and 
ironing  in  public  laundries  and  washhouses  from  ten 
o'clock  at  night  to  six  in  the  morning,  is  a  purely  police 
regulation,  within  the  competency  of  a  municipality  pos- 
sessed of  ordinary  powers.  Barbier  v.  Connolly,  113 
U.  S.,  27 ;  Soon  Hing  v.  Crowley/ 113  U.  S.,  703. 

The  14th  Amendment  does  not  limit  the  subjects  in 
relation  to  which  the  police  power  of  the  State  may  be 
exercised  for  the  protection  of  its  citizens.  Barbier  v. 
Connolly,  113  U.  S.,  27;  Soon  Hing  v.  Crowley,  113 
U.  S.,  703;  Mo.  Pac.  E'y  v.  Humes,  115  U.  S.,  612; 
Minn.  K'y  Co.  v.  Beckwith,  129  U.  S.,  26. 

The  State  may  limit  or  restrain  the  sale  of  intoxicat- 
ing liquors. — A  State  may  prohibit  or  restrain  the  man- 
ufacture or  sale  of  intoxicating  liquors  within  its  limits, 
and  inflict  penalties  therefor,  and  provide  for  the  abate- 
ment as  a  nuisance  of  all  property  used  for  such  for- 


Art.  XIY.]         POLICE  POWERS  OF  STATES.  343 

V 

bidden  purposes ;  and  sncli  legislation  does  not  deprive 
of  property  without  due  process  of  law.  Kidd  v.  Pear- 
son, 128  U.  S.,  1.     See,  ante,  p.  67. 

Police  regulations  the  State  may  prescribe  without 
contravening  the  IJfth  Amendment:  1.  May  change 
rate  of  interest  on  judgments. — A  State  statute  may 
change  the  rate  of  interest  on  a  judgment  previously 
rendered.  This  is  not  depriving  of  property  without 
due  process  of  law.  Morley  v.  Lake  Shore,  etc.,  K'y  Co., 
146  U.  S.,  162.  It  is  ruled  that  the  contract  did  not 
provide  that  the  interest  on  any  judgment  should  be  at 
any  particular  rate.     Id. 

2.  May  require  practitioners  to  pay  license  tax. — The 
statute  of  West  Virginia  which  requires  every  practi- 
tioner of  medicine  in  the  State  to  obtain  a  certificate 
from  the  State  board  of  health  that  he  is  a  graduate  of  a 
reputable  medical  college  in  the  school  of  medicine  to 
which  he  belongs,  or  that  he  has  practiced  medicine  in 
the  State  for  ten  years  or  that  he  is  found  upon  examina- 
tion to  be  qualified  to  practice  medicine  in  all  its  depart- 
ments and  which  subjects  a  person  so  practicing  without 
such  certificate  to  prosecution  and  punishment  for  a 
misdemeanor,  does  not  violate  the  Pourteenth  Amend- 
ment, even  when  applied  to  one  who  had  practiced  medi- 
cine for  five  years  before  the  passage  of  the  act.  Dent 
V.  West  Virginia,  129  U.  S.,  114. 

3.  The  location  of  marJcets, — An  ordinance  declaring" 
that  no  public  market  in  !N'ew  Orleans  shall  be  kept 


844  COIs'STITUTION  OF  UNITED  STATES.  [Amt's, 

within  six  squares  of  any  other  public  market,  under 
penalty,  does  not  violate  the  Fourteenth  Amendment 
to  the  Constitution.  N'atal  v.  Louisiana,  139  U.  S., 
621.     See  Slaughter-House  Cases,  16  Wall.,  36. 

4.  May  make  regulation  to  'protect  highways,  etc. — 
An  ordinance  of  a  city  prohibiting  the  moving  of  any 
building  on  or  across  the  streets  without  permission  of 
the  mayor  of  the  city  or  president  of  the  council,  does 
not  violate  the  Fourteenth  Amendment.  Wilson  v.  Eu- 
reka City,  173  U.  S.,  32. 

The  statute  of  Utah  which  makes  any  person  who 
drives  cattle  on  a  hillside  highway  liable  for  damages 
by  such  animals  to  the  highway,  does  not  deny  to  such 
persons  the  equal  protection  of  the  laws.  The  dam- 
ages in  this  case  were  caused  by  rolling  rocks  in  the 
highway  and  destroying  the  banks.  Jones  v.  Brim,  165 
U.  S.,  180. 

5.  May  locate  harbor  lines. — The  location  of  harbor 
lines  on  navigable  waters  held  not  a  depriving  of  prop- 
erty without  due  process  of  law,  though  they  included 
a  wharf  long  established,  where  the  Constitution  of  the 
State  recognized  a  vested  right  therein;  as  the  same 
right  remained  in  the  wharf -owner  after  as  before  the 
establishment  of  the  harbor  line.  Yesler  v.  Harbor 
Line  Com'rs,  146  U.  S.,  646. 

6.  May  require  cars  to  be  heated  otherwise  than  by 
stoves. — A  statute  of  'New  York  which  forbids  the  heat- 
ing of  passenger  cars  by  stoves,  on  railroads  over  50 


Art.  XIV.]         POLICE  POWERS  OF  STATES.  345 

miles  in  length,  does  not  violate  the  Fourteenth  Amend- 
ment. "New  York,  etc.,  K'j  Co.  v.  People  of  !N'ew  York, 
165  U.  S.,  628. 

7.  May  declare  liability  of  railroad  companies  for 
failure  to  fence  trades. — A  statute  of  Minnesota  (Gen. 
Laws,  1877)  gave  to  land  owners  damages  for  the  ex- 
pense and  inconvenience  of  watching  cattle,  to  keep 
them  from  escaping  upon  the  railroad  tracks  running 
through  their  lands,  which  the  company  had  failed  to 
fence.  Such  statute  is  within  the  police  power  of  the 
State  and  not  subject  to  the  inhibition  of  the  Four- 
teenth Amendment,  as  it  does  not  deprive  of  the  equal 
protection  of  the  laws.  Minneapolis,  etc.,  R.  R.  Co.  v. 
Emmons,  149  U.  S.,  364;  Same  v.  ISTelson,  149  II.  S., 
368.  So,  the  allowance  of  damages  for  the  diminution 
in  value  of  the  farms  resulting  from  the  failure  to  fence 
its  tracks.     Id. 

8.  May  regulate  licensing  of  locomotive  engineers. — 
A  State  statute  requiring  locomotive  engineers  to  be  ex- 
amined as  to  their  capacity  to  distinguish  colors  and  dis- 
criminate between  color  signals,  and  require  railroad 
companies  to  pay  a  fee  for  such  examination,  does  not 
deprive  of  property  without  due  process  of  law,  nor  af- 
fect interstate  commerce.  !N"ashville,  etc.,  R'y  Co.  v. 
Alabama,  128  U.  S.,  96. 

9.  May  regulate  rule  as  to  damages  for  injuries  to 
employes. — The  statute  of  Kansas  which  provides  that, 
**Every  railroad  company  organized  or  doing  business 


346  CONSTITUTIO]^^  OF  UNITED  STATES.  [Amt'Sj. 

in  this  State  shall  be  liable  for  all  damages  done  by  any 
employe  of  such  company  in  consequence  of  any  neg* 
ligence  of  its  agents,  or  by  the  mismanagement  of  its^ 
engineers,  or  other  employes,  to  any  person  sustaining 
such  damage,"  does  not  deprive  of  property  without  due* 
process  of  law,  nor  deny  equal  protection  of  the  laws. 
Missouri  K'y  Co.  v.  Mackey,  127  U.  S.,  206.  The  rea- 
son  for  this  ruling  is  that  the  hazardous  character  of  the- 
business  of  operating  a  railroad  calls  for  special  legis- 
lation, having  for  its  object  the  protection  of  their  em- 
ployes as  well  as  the  public.  The  business  of  other  cor- 
porations is  not  subject  to  similar  dangers  to  employes^ 
Id. ;  Minneapolis,  etc.,  Co.  v.  Herrick,  127  U.  S.,  210. 
Statutes  of  similar  character,  making  railroad  com- 
panies peculiarly  liable,  have  been  upheld  in  Chicago^ 
etc.,  Ey.  Co.  v.  Pontius,  157  U.  S.,  209 ;  Orient  Ins.  Co. 
V.  Daggs,  172  U.  S.,  557. 

10.  May  fix  rule  of  damages  for  stock  hilled  hy  negli- 
gence of  railroad, — The  statute  of  Iowa  (Sec.  1289), 
which  authorizes  the  receiving  of  "double  the  value  o£ 
stock  killed  or  damages  caused  thereto"  by  railroads 
derelict  in  maintaining  fences  on  their  tracks  is  not  de- 
priving of  property  without  due  process  of  law  or  deny- 
ing of  equal  protection.  Minneapolis  R'y  Co.  v.  Beck- 
with,  129  U.  S.,  26. 

11.  May  restrain  illegal  fishing  and  declaring  ap- 
paratus so  used  nuisances. — Laws  of  a  State  declaring 
nets,  pounds  and  other  devices  for  violating  the  laws 


Art.  XIV.]        POLICE  POWERS  OF  STATES.  ^4?| 

against  fishing  or  killing  game  out  of  season,  a  nuisance, 
are  not  in  violation  of  the  14th  Amendment,  as  depriv- 
ing of  property  without  due  process  of  law.  Lawton  v. 
Steele,  152  U.  S.,  132. 

12.  May  regulate  'payment  of  wages  to  discharged  em- 
ployes. — An  Arkansas  statute,  which  requires  any  rail- 
road company  discharging  an  employe,  to  immediately 
pay  any  unpaid  wages  earned  at  the  time  of  discharge,  is- 
not  contrary  to  the  14th  Amendment.  St.  Louis,  etc., 
K.  Co.  V.  Paul,  173  U.  S.,  404. 

13.  May  regulate  insurance  contracts  to  he  made  in 
the  future. — A  valued  policy  statute  applying  only  to 
future  contracts  which  raises  a  conclusive  presumption 
of  fact  as  to  value,  does  not  deprive  an  insurance  com- 
pany of  property  without  due  process  of  law,  as  the 
parties  are  free  to  fix  the  value  and  the  statute  merely 
estops  them  after  the  contract  is  made.  Orient  Ins.  Co. 
V.  Daggs,  172  U.  S.,  557. 

14.  May  regulate  the  sale  of  oleomargarine  and  like 
'products. — The  14th  Amendment  to  the  Constitution 
was  not  designed  to  interfere  with  the  exercise  of  the 
police  power  of  the  State  for  the  protection  of  health, 
the  prevention  of  fraud,  and  the  preservation  of  public 
morals.  The  prohibition  of  the  manufacture  of  oleag- 
inous substances,  such  as  oleomargarine  or  butterine,  or 
of  products  in  imitation  of  butter,  is  a  lawful  exercise 
of  the  police  power.  The  statute  of  Pennsylvania  "for 
the  protection  of  the  public  health  and  to  prevent  adul- 


348        CONSTITUTION"  OF  UNITED  STATES.    [Amt^S, 

teration  of  dairy  products  and  fraud  in  their  sale,"  held 
valid;  and  that  it  neither  denies  equal  protection,  de- 
prives of  property  without  due  process  of  law,  or  without 
compensation.     Powell  v.  Pennsylvania,  127  U.  S.,  678. 

15.  May  make  water  rents  a  charge  upon  lands,  with 
priority  of  lien,  etc. — An  act  making  water  rents  a 
charge  upon  lands  in  a  municipality,  with  a  lien  having 
priority  to  all  liens  by  mortgage,  does  no  violation  to  the 
14th  Amendment,  whether  the  water  was  introduced 
upon  the  premises  before  or  after  the  giving  of  the  mort- 
gages. It  is  not  depriving  without  due  process  of  law. 
Provident  Inst.  v.  Jersey  City,  113  U.  S.,  506. 

16.  How  far  may  exclude  foreign  corporations  from 
doing  business  in  the  States. — The  only  limitation  upon 
the  power  of  the  State  to  exclude  foreign  corporations 
from  doing  business  within  its  limits  or  hiring  officers 
for  that  purpose  or  to  exact  conditions  for  allowing  the 
corporations  to  do  business  or  hire  officers  there,  arises 
where  the  corporation  is  in  the  employ  of  the  Federal 
government,  or  where  its  business  is  strictly  commerce, 
foreign  or  interstate.  Pembina  Mining  Co.  v.  Penn- 
sylvania, 125  U.  S.,  181.  This  was  a  Colorado  corpora- 
tion, and  by  the  laws  of  Pennsylvania  was  required  to 
pay  a  license  fee  to  enable  it  to  have  an  office  in  that 
State.  See  ante,  pp.  190,  260.  Corporations  are  persons 
within  the  meaning  of  the  14th  Amendment.  Santa 
Clara  Co.  v.  So.  Pac.  R.  R.  Co.,  118  U.  S.,  394;  Pern; 
bina  Mining  Co.  v.  Pennsylvania,  125  U.  S.,  181. 


Art.  XIV.]         POLICE  POWEKS  OF  STATES.  \      ^4sf 

But  a  foreign  corporation  can  not  claim  that  it  is  de- 
nied the  equal  protection  of  the  laws  by  being  required 
to  pay  a  license  tax  to  do  business  in  the  State.  It  must 
comply  with  the  conditions  imposed  for  the  privilege  of 
doing  business  in  the  State.  Phila.  Fire  Ass.  v.  New 
York,  119  U.  S.,  110. 

17.  May  fix  hours  of  labor  in  mines. — The  statute  of 
Utah  forbidding  the  employment  of  working  men  for 
more  than  eight  hours  a  day  in  mines  and  the  smelting, 
reduction,  etc.,  of  ores,  is  within  the  police  power  of  the 
State,  not  an  interference  with  the  right  of  contract,  nor 
violation  of  the  14th  Amendment.  Holden  v.  Hardy, 
169  U.  S.,  366. 

18.  The  right  to  demand  reimbursement  from  a  mu- 
nicipal corporation  for  damages  caused  by  a  mob  is  a 
statutory  right,  and  not  one  founded  on  contract.  The 
legislature  may  repeal  the  law ;  and  when  a  judgmcfnt 
has  been  obtained  therefor,  the  State  may  forbid  the 
levying  of  taxes  to  pay  such  judgments,  without  depriv- 
ing the  owner  of  his  property  without  due  process  of 
law,  within  the  meaning  of  the  14th  Amendment. 
Louisiana  v.  Mayor  of  l^ew  Orleans,  109  U.  S.,  285. 

19.  The  Chinese  Deportation  Act  of  May  Qth,  1892, 
which  puts  the  burden  of  proof  upon  a  Chinese  laborer 
arrested  for  having  no  certificate,  as  well  as  the  require- 
ment of  proof  by  one  credible  white  man  that  he  was  a 
resident  of  the  United  States  at  the  time  of  the  passage 


550  COIS^STITUTION  OF  UNITED  STATES.  [Amt's, 

of  the  Act,  is  not  unconstitutional.     Fong  Yue  Ting  v. 
United  States,  149  U.  S.,  698. 

20.  Warehouses  and  elevators^,  subject  to  State  re- 
strictions to  charges. — The  States  under  their  police 
power  may  fix  the  reasonable  rates  to  be  charged  for  re- 
ceiving in  elevators  and  storing  grain ;  and  such  restric- 
tions do  not  deprive  the  owners  of  the  warehouses  or 
elevators  of  equal  protection  or  due  process  of  law. 
Munn  V.  Illinois,  94  U.  S.,  113 ;  Budd  v.  N'ew  York, 
143  U.  S.,  517 ;  Brass  v.  Stoeser,  153  U.  S.,  391. 

21.  Irrigation  of  lands  a  public  purpose^  statutes  for, 
valid. — The  statutes  of  California  to  provide  for  the  or- 
ganization and  government  of  irrigation  districts,  the 
acquisition  and  distribution  of  water,  being  held  valid 
by  the  Supreme  Court  of  the  State,  are  so  regarded. 
Fallbrook  Irrigation  Dist.  v.  Bradley,  164  U.  S.,  112. 
The  method  of  taking  property  for  such  use  is  due  pro- 
cess of  law.     Id. 

Miscellaneous  police  regulations  held  valid. — The 
ordinance  of  the  city  of  Boston  which  provides  that 
"no  person  shall,  in  or  upon  any  of  the  public  grounds, 
make  any  public  address,"  etc.,  "except  in  accord- 
ance with  a  permit  from  the  mayor,"  is  not  in  con- 
flict with  Federal  Constitution  or  the  14th  Amendment, 
which  does  not  destroy  the  power  of  the  States  to  make 
police  regulations  as  to  subjects  within  their  control, 
and  does  not  give  the  citizen  the  right  to  use  public 


Art.  XI v.]         POLICE  POWEES  OF  STATES.  351 

property  of  the  State  in  a  manner  contrary  to  its  laws. 
Davis  V.  Massachusetts,  167  U.  S.,  43. 

Regulation  of  houses  of  ill  fame. — The  ordinance 
of  jN'ew  Orleans  prescribing  limits  in  that  city  outside  of 
which  no  lewd  woman  shall  dwell  is  lawful  exercise  of 
the  police  power ;  and  does  not  deprive  owners  of  prop- 
erty in  or  adjacent  to  such  limits  of  their  property  with- 
out due  process  of  law.  L'Hote  v.  N^ew  Orleans,  177 
U.  S.,  .587. 

8ale  of  cigarettes. — The  ordinance  of  the  city  of  Chi- 
cago which  authorizes  the  sale  of  cigarettes,  but  only 
oh  payment  of  a  license  of  $100,  is  no  violation  of  the 
Federal  Constitution.  Gundling  v.  Chicago,  177  U.  S., 
183. 

Flowing  or  waste  of  natural  gas. — The  statute  of 
Indiana  of  March  4,  1893,  forbidding  owners,  etc.,  of 
natural  gas  wells  to  allow  or  permit  the  flow  of  gas  into 
the  open  air,  and  requiring  it  to  be  safely  confined,  does 
not  conflict  with  the  14th  Amendment,  but  is  lawful  ex- 
ercise of  police  power.  Ohio  Oil  Co.  v.  Indiana,  177 
U.  S.,  190. 

The  exaction  of  tolls,  under  a  State  statute  for  the 
use  of  an  improved  natural  waterway,  is  not  within  the 
prohibition  of  the  Constitution  that  no  State  shall  de- 
prive a  person  of  his  property  without  due  process  of 
law.  Sands  v.  Manistee  Eiver  Imp.  Co.,  123  TJ.  S., 
288 ;  Huse  v.  Glover,  119  U.  S.,  543. 

It  is  not  depriving  of  property  without  due  process 


352        CONSTITUTION  OF  UNITED  STATES.    [Amt's, 

of  law  to  subject  the  logs  of  one  owner  in  a  log  boom  to  a 
lien  for  fees  of  the  surveyor  general,  for  surveying  and 
scaling  all  the  logs  in  the  boom,  nor  is  it  a  burden  on  in- 
terstate commerce.  Lindsay  and  Phelps  Co.  v.  Mullen, 
176  U.  S.,  126. 

Diligence  in  delivering  telegraph  dispatches. — ^A! 
State  can  impose  a  penalty  for  lack  of  diligence  in  de- 
livering telegrams;  and  this  is  not  an  interference  with 
interstate  commerce,  though  it  applies  to  lines  wholly 
or  partly  within  the  State.  Western  U.  Tel.  Co.  v. 
James,  162  U.  S.,  650. 

Declaring  liability  of  private  corporations. — A  stat- 
ute of  Indiana  making  railroad  or  other  corporations, 
except  municipal,  liable  for  damages  for  personal  injury 
in  certain  cases  specified,  does  not  conflict  with  the  14th 
Amendment.  Tullis  v.  Lake  Erie  &  Western  K.  Co., 
175  U.  S.,  348. 

State  regulation  of  carriers*  rates. — 1.  The  common- 
law  doctrine  is  that  common  carriers  or  other  persons 
exercising  a  public  employment  can  not  charge  more 
than  a  reasonable  compensation  for  their  services,  and 
it  is  in  the  power  of  the  State  legislature  to  declare,  as 
to  traffic  wholly  within  the  State,  what  shall  be  a  rea- 
sonable compensation,  or  to  ^x  a  maximum  beyond 
which  any  charge  would  be  unreasonable.  Munn  v.  Il- 
linois, 94  U.  S.,  133;  Chicago,  B.  &  Q.  K.  E.  Co.  v. 
Iowa,  94  U.  S.,  155. 

2.  If  the  rates  are  improperly  fixed  the  legislature^ 


Art.  XIV.]         POLICE  POWEKS  OF  STATES.  353 

not  the  courts,  must  be  appealed  to  for  tlie  change.  Peik 
V.  C.  &  K  W.  K'y  Co.,  94  U.  S.,  164;  C,  M.  &  St.  Paul 
E.  E.  Co.  V.  Ackley,  94  U.  S.,  179 ;  Winona  &  St.  Peters 
E.  E.  V.  Blake,  94  U.  S.,  180 ;  Stone  v.  Wisconsin,  94 
U.  S.,  181;  Dow  V.  Beidelman,  126  U.  S.,  680;  Stone 
V.  Farmers'  Loan  &  Trust  Co.,  116  U.  S.,  307 ;  Stone  v. 
111.  Cent.  E.  E.,  116  U.  S.,  352 ;  Same  v.  JSTew  Orleans, 
etc.,  E.  E.,  116  U.  S.,  352. 

3.  But  this  power  is  not  without  limit.  The  State 
can  not  under  pretense  of  regulation  require  a  railroad 
company  to  carry  without  reward;  neither  to  do  that 
which  amounts  to  taking  of  private  property  for  public 
use,  without  due  compensation  or  without  due  process  of 
law.     116  U.  S.,  331. 

4.  A  statute  fixing  3  cents  per  mile  as  the  maximum, 
within  the  State,  and  classifying  railroad  corporations 
by  the  length  of  their  lines,  was  held  as  not  depriving  of 
property  with  due  process  of  law.  Dow  v.  Beidelman, 
125  U.  S.,  680. 

5.  And,  under  the  14th  Amendment,  it  is  held  that 
when  a  State  fixes  rates  so  unreasonable  as  to  practically; 
destroy  the  value  of  the  property  of  the  companies  en- 
gaged as  carriers,  the  courts  of  the  United  States  may 
treat  it  as  a  judicial  question,  and  hold  such  legislation 
to  be  in  conflict  with  the  Constitution  of  the  United 
States  as  depriving  the  company  of  property  without 

due  process  of  law  and  as  depriving  it  of  the  equal  pro- 
23 


S54  COIS^STITUTION  OF  UNITED  STATES.  [Amf  S, 

teetion  of  the  laws.     St.  Louis,  etc.,  E.  K.  Co.  v.  Gill, 
156  U.  S.,  649. 

6.  The  reasonableness  or  unreasonableness  of  rates 
prescribed  by  a  State,  as  to  transportation  wholly  within 
the  State,  must  be  determined  without  reference  to  in- 
terstate business  done  or  the  profits  derived  therefrom. 
Smyth  V.  Ames,  169  U.  S.,  466. 

7.  It  is  within  the  power  of  a  court  of  equity  of  the 
United  States,  having  jurisdiction,  to  decree  that  the 
rates  so  established  are  unreasonable  and  unjust  and  to 
restrain  their  enforcement;  but  it  can  not  establish 
rates  itself  nor  restrain  the  State  railroad  commissioners 
(who  are  authorized  by  the  State  laws  to  fix  rates)  from 
again  establishing  rates.  Eeagan  v.  Farmers'  Loan  & 
Trust  Co.,  154  U.  S.,  362.     See,  ante,  p.  338. 

Decisions  of  State  tribunal  as  to  a  State  office. — The 
decision  of  a  State  tribunal,  against  a  claimant  to  a 
State  office,  does  not  deprive  him  of  property,  within 
the  meaning  of  the  14th  Amendment,  so  as  to  give  jur- 
isdiction to  the  Supreme  Court  of  the  United  States  on 
a  writ  of  error.     Taylor  v.  Beckham,  178  U.  S.,  548. 

VII.  Instances  where  local  taxation  has  been  upheld 
as  not  contravening  the  IJf-th  Amendment. 

1.  State  may  tax  bridge  crossing  river  into  another 
State. — To  bring  taxation  by  a  State  within  the  provi- 
sions relating  to  due  process  of  law,  the  case  must  be  so 
clearly  an  illegal  encroachment  as  to  be  spoliation.  A 
bridge  across  the  Ohio  river  at  Henderson,  Kentucky, 


Art.  XIV.]  STATE  TAXATIOI7.  355 

was  taxed  by  the  municipal  authorities  of  the  city  on  the 
Kentucky  side.  Held,  that  it  was  a  proper  subject  of 
taxation  there,  though  the  river,  as  a  navigable  stream, 
is  under  the  control  of  Congress.  Henderson  Bridge  Co. 
V.  Henderson,  173  U.  S.,  592,  624. 

2.  Franchise  tax  held  valid  as  not  discriminating 
against  foreign  company. — The  N'ew  York  statute  im- 
posing a  franchise  tax  upon  corporations  doing  business 
in  the  States,  does  not  deny  equal  protection  because  it 
exempts  corporations  wholly  engaged  in  manufacturing 
or  mining  within  the  State,  since  no  discrimination  is 
made  in  that  regard  between  domestic  and  other  corpora- 
tions. It  does  not  operate  to  tax  the  products  of  a  for- 
eign corporation  brought  into  the  State.'  Where  the 
franchise  tax  is  based  upon  the  amount  of  capital  em- 
ployed by  the  corporation  in  the  State,  it  is  not  rendered 
illegal  by  the  fact  that  such  capital  is  employed  in  in- 
terstate or  foreign  commerce.  State  v.  Roberts,  171 
IT.  S.,  658. 

3.  State  may  tax  the  interest  of  a  non-resident  mort- 
gagee in  the  mortgaged  land. — The  statute  of  a  State 
(Oregon)  which  imposes  a  tax  upon  a  mortgagee's  inter- 
est in  land  as  real  estate,  regardless  of  the  residence  of 
the  mortgagee,  does  not  deprive  him  of  his  property  with- 
out due  process  of  law  nor  deny  him  the  equal  protection 
of  the  laws.  Savings  &  Loan  Soc.  v.  Multnomah  Co., 
169  U.  S.,  421.  The  reasoning  of  the  court  in  this  case 
is  that  the  interest  of  the  mortgagee  can  be  assessed  irre- 


356 


CONSTITUTIOIT  OF  UNITED  STATES.         [Am'tS, 


spective  of  the  personal  debt,  and  the  interest  of  the 
mortgagor  can  be  separately  assessed.  The  Constitution 
of  Oregon  forbids  the  taxing  of  promissory  notes  or 
other  instruments,  but  provides  for  the  taxing  of  the  in- 
terest in  the  real  estate,  which  is  a  mere  security  for  such 
debt.  This  ease  is  to  be  noted  with  Kirtland  y.  Hotch- 
kiss,  100  IT.  S.,  491,  where  it  was  held  that  debts  to  per- 
sons residing  in  one  State  ^nd  secured  by  mortgages  in 
another  might  for  purposes  of  taxation  be  taxed  at  the 
domicile  of  the  creditor.  He  is  therefore  exposed  to 
double  taxation.  He  must  pay  tax  on  the  chose  in  action 
where  he  resides,  and  for  the  security  on  land  by  mort- 
gage which  secures  it  he  is  taxed  where  the  land  is. 
The  court  approves  the  language  of  Tryon  v.  Munson, 
77  Pa.  St.,  250.  "There  is  a  manifest  difference  be- 
tween the  debt,  which  is  a  mere  chose  in  action,  and  the 
land  which  secures  its  payment.  Of  the  former  there 
can  be  no  possession  except  that  of  the  writing  which 
evidences  the  obligation  to  pay;  but  of  the  latter,  the 
land  or  pledge,  there  may  be.  The  debt  is  intangible, 
the  land  tangible.  The  mortgage  passes  to  the  mortga- 
gee the  title  and  right  of  possession  to  hold  till  payment 
shall  be  made." 

4.  Inheritance  tax  hy  State  valid. — The  provisions  of 
the  14th  Amendment,  securing  the  equal  protection  of 
the  laws,  does  not  prevent  the  States  from  distinguish- 
ing, selecting  and  classifying  objects  of  legislation,  so 
long  as  the  classification  is  based  on  some  reasonable 


Art.  XIV.]  POLICE  POWERS.  357 

ground,  and  is  not  merely  arbitrary.  Magoun  v.  111. 
Trust  &  Savings  Bk.,  18  Sup.  Ct.  Eep.,  594.  In  this  case 
it  is  held  that  the  amount  of  property  exempted  from  an 
inheritance  tax  is  entirely  in  the  discretion  of  the  State 
legislature.  The  law  of  Illinois  taxing  strangers  to  the 
blood  3  per  cent,  on  legacies  of  $10,000  or  less,  4  per 
cent,  on  those  between  $10,000  and  $20,000  and  5  per 
cent,  on  legacies  between  $20,000  and  $50,000,  and  6 
per  cent,  on  all  above  $50,000  was  held  a  reasonable 
classification,  and  not  a  denial  of  the  equal  protection 
of  the  law.    Id. 

A  law  of  the  State  of  Louisiana  imposing  a  tax  on 
legacies  payable  to  aliens,  is  not  repugnant  to  the  Con- 
stitution of  the  United  States.  Mager  v.  Grima,  8 
How.,  492. 

5.  State  may  create  new  or  special  taxing  districts. — - 
A  statute  of  Connecticut  placed  five  towns  in  a  class, 
and  made  them  a  municipal  corporation,  for  the  pur- 
poses of  maintaining  highways  and  bridges.  They  were 
subjected  to  a  different  control  in  respect  thereto  from 
other  towns.  A  taxpayer  against  whom  taxes  were  lev- 
ied by  this  corporation  can  not  claim  that  he  is  denied 
the  equal  protection  of  the  laws.  Williams  v.  Eggles- 
ton,  170  U.  S.,  304.  It  is  not  proceeding  without  due 
process  of  law,  for  the  State  legislature  to  create  new 
taxing  districts  and  assigning  the  territory  to  belong  to 
them.     Id. 

Dog  taxes. — A  State  statute  providing  that  no  dog 


358        CONSTITUTION  OF  UNITED  STATES.    [Am'tS, 

shall  be  entitled  to  the  protection  of  the  law,  unless 
placed  upon  the  assessment  rolls,  and  that  in  a  civil  ac- 
tion for  killing  a  dog,  the  owner  can  not  recover  beyond 
the  value  fixed  by  himself  in  the  last  assessment  roll,  is 
within  the  police  power  of  the  State.  Sentell  v.  'New 
Orleans,  etc.,  E.  Co.,  166  U.  S.,  698. 

Exemption  of  property  from  taxation. — The  14th 
Amendment  does  not  compel  the  States  to  adopt  an  iron- 
rule  of  equal  taxation.  It  leaves  that  subject  to  the  sev- 
eral States.  They  may  exempt  certain  property,  impose 
and  vary  the  rates  on  trades  and  professions,  or  on 
products,  subject  only  to  the  Constitution  of  the  State. 
Bell's  Gap  E.  Co.  v.  Pennsylvania,  134  U.  S.,  232. 

Taxation  of  National  hank  shares. — The  Massa- 
chusetts law  for  the  taxation  of  shares  of  National  banks 
held  not  to  deny  the  equal  protection  of  the  laws  as  they 
do  not  impose  a  disproportionate  or  unequal  tax  upon 
such  banks.  Bank  of  Eedemption  v.  Boston,  125  U.  S., 
60.  The  fact  that  the  State  laws  exempt  savings'  banks 
and  trust  deposits  from  like  taxes  does  not  violate  the 
14th  Amendment.  Mercantile  Bank  v.  ISTew  York,  121 
U.  S.,  138;  Davenport  Bank  v.  Davenport,  123  U.  S., 
83.     See,  ante^  p.  35. 

An  ad  valorem  assessment  of  cost  of  irrigation  ap- 
pliances instead  of  an  assessment  on  the  basis  of  benefit 
is  not  a  taking  of  property  without  due  process  of  law. 
Fallbrook  Irrigation  Dist.  v.  Bradley,  164  U.  S.,  158, 
176, 176. 

The  city  charter  of  Portland,  Ore.,  grants  in  general 


Art.  XIV.]  STATE  TAXATIO]!T.  359 

terms  power  to  the  common  council  to  construct  sewers 
and  assess  cost  of  same  on  benefited  property.  This  is 
not  depriving  of  property  without  due  process  of  law, 
even  though  it  contain  no  express  provisions  for  notice  of 
such  assessment.  Paulsen  v.  City  of  Portland,  149 
U.  S.,  30.  The  giving  of  notice  is  implied  in  the  statute, 
or  ordinance.     Id. 

The  repeal  of  a  statute  authorizing  a  water  company 
to  set  off  its  water  rates  owing  it  by  the  city  against 
taxes  due  the  city  is  not  a  depriving  of  the  city  of  prop- 
erty without  due  process  of  law,  in  the  sense  in  which  the 
word  "property"  is  used  in  the  Constitution.  "New  Or- 
leans Water  Works  v.  ISTew  Orleans,  142  U.  S.,  79.  The 
statute  allowed  the  city  free  use  of  water  for  municipal 
purposes  and  gave  the  company  exemption  from  taxa- 
tion. 

Taxation  of  foreign  corporations  on  proportionate 
bases.— The  Ohio  statute  (E.  S.,  sees.  2777-2780)  tax- 
ing telephone,  telegraph  and  express  companies  on  prop- 
erty within  the  State,  the  value  of  which  is  determined 
with  reference  to  the  entire  capital  of  the  company,  is  not 
a  tax  on  property  beyond  the  jurisdiction  of  the  State 
and  is  not  a  taking  of  property  without  due  process  of 
law.  Sandford  v.  Poe,  165  U.  S.,  194.  I^Tor,  does 'it 
deny  the  company  the  equal  protection  of  the  laws.     Id. 

Tolls  for  waterways. — The  exaction  of  tolls,  under  a 
State  statute,  for  the  use  of  an  improved  natural  water- 
way, is  not  within  the  prohibition  of  the  Constitution 


360        CONSTITUTION  OF  UNITED  STATES.    [Am'tS, 

that  no  State  shall  deprive  a  person  of  his  property  with- 
out due  process  of  law.  Sands  v.  Manistee,  etc.,  Co,, 
123  U.  S.,  288. 

Making  tax  deeds  conclusive  evidence, — A  State  law, 
making  tax  deeds  after  having  been  of  record  a  stated 
time,  conclusive  evidence  that  there  was  no  irregularity 
in  the  proceedings  antecedent  to  and  in  issuing  the  deed, 
is  a  statute  of  limitations  and  not  in  conflict  with  the 
14th  Amendment.  Saranac  Land,  etc.,  Co.  v.  Comptrol- 
ler of  New  York,  177  U.  S.,  318. 

The  amendment  operates  retrospectively  against  laws 
passed  before  its  adoption, — The  provision  of  the  14:th 
Amendment  forbidding  the  States  to  deprive  any  per- 
son of  his  property  without  due  process  of  law,  so  far 
operates  retrospectively  as  to  prevent  such  taking  after 
the  amendment,  under  authority  of  a  statute  passed  prior 
thereto.  Kaukauna  Water  Power  Co.  v.  Green  Bay  & 
Miss.  Canal  Co.,  142  U.  S.,  254.  A  proceeding  under  a 
State  statute  may  now  violate  the  14th  Amendment 
"V^rhich  would  not  have  violated  the  Constitution  before 
the  adoption  of  that  amendment.     Id. 

Privileges  and  immunities  as  to  voters. — The  Missis- 
sippi Constitution  and  laws  pursuant  thereto  forbidding 
any  but  persons  who  can  read  and  write  and  have  paid 
their  taxes  from  voting  or  being  qualified  electors  or 
jurors,  does  not  violate  the  14th  Amendment,  because  it 
may  operate  as  a  discrimination  against  the  colored  race. 
Williams  v.  Mississippi,  170  U.  S.,  213. 


Art.  XI Y.]  DUE  PEOCESs  or  law.  361 

Decisions  relating  to  and  definitive  of  "due  process  of 
law'' — Due  process  of  law  defined. — "The  clause  in  the 
14th  Amendment  Vithont  due  process  of  law'  is  in- 
tended where  used  in  the  State  and  Federal  Constitu- 
tions as  an  additional  security  against  the  arbitrary  dep- 
rivation of  life  and  liberty  and  the  arbitrary  spoliation 
of  property."  *'By  ^due  process  of  law'  is  meant  one 
which  follows  the  forms  of  law  appropriate  to  the  case, 
and  just  to  the  parties  affected.  It  must  be  pursued  in 
the  ordinary  mode  prescribed  by  law ;  it  must  be  adapted 
to  the  end  to  be  attained ;  and  whenever  it  is  necessary 
for  the  protection  of  the  parties,  it  must  give  them  an  op- 
portunity to  be  heard  respecting  the  judgment  sought. 
A  law  authorizing  a  tax  or  assessment  on  property  ac- 
cording to  its  value  does  not  infringe  the  14th  Amend- 
ment."    Hagar  v.  Reclamation  Dist.,  Ill  U.  S.,  701. 

The  words  "due  process  of  law,"  in  the  14th  Amend- 
ment, do  not  necessarily  require  an  indictment  by  a 
grand  jury  in  a  prosecution  by  a  State  for  murder. 
Where  State  Constitutions,  like  those  of  Michigan,  Cali- 
fornia and  Wisconsin  authorize  such  crimes  to  be 
charged  and  tried  upon  information  filed,  this  is  due 
process  of  law,  in  such  States.  Hurtado  v.  California, 
110  U.  S.,  516. 

Tax. — The  due  process  implies,  at  least  conformity, 
with  natural  and  inherent  principles  of  justice,  and  for- 
bids the  taking  of  property  without  compensation,  or  the 
condemnation  of  any  person  or  property  without  oppor- 


362  COI^STITUTION  OF  UIvTITED  STATES.  [Am'tS, 

tunity  to  be  heard  in  defense.  Holden  v.  Hardy,  169 
U.  S.,  366. 

The  term  "due  process  of  law"  means  a  course  of 
legal  proceedings  according  to  the  rules  and  principles 
which  have  been  established  in  our  jurisprudence  for  the 
protection  and  enforcement  of  private  rights.  Pen- 
noyer  v.  K'eff,  95  U.  S.,  714;  Kennard  v.  Louisiana,  92 
U.  S.,  480;  Hagar  v.  Eeclamation  Dist.,  Ill  U.  S.,  701. 

"Due  process  of  law"  in  a  State  is  regulated  largely 
by  the  law  of  the  State.  Walker  v.  Sauvinet,  92  U.  S., 
90. 

Instances  of  depriving  of  property  without  due  pro^ 
cess  of  law. 

1.  Compelling  corporatio7i  to  surrender  land  for  ele- 
vator.— An  order  of  a  State  court,  requiring  a  rail- 
road company  to  surrender  land  to  private  individ- 
uals to  be  used  as  a  site  for  an  elevator,  is  taking  of  pri- 
vate property  without  due  process  of  law.  Mo.  Pac.  E. 
Co.  V.  :N'ebraska,  164  U.  S.,  403. 

2.  Making  non-resident  personally  liable  for  faxes. — 
A  State  statute  which  attempts  to  make  a  non-resident 
lot  owner  liable  personally  for  assessment  for  local  im- 
provements amounts  to  taking  property  without  due  pro- 
cess of  law.  And  by  resorting  to  the  State  court  for  re- 
lief the  non-resident  does  not  thereby  consent  to  such 
personal  liability.  Dewey  v.  Des  Moines,  173  U.  S., 
193. 

A  judgment  of  a  State  court  even  if  authorized  by 


Art.  XIV.]  DUE  PROCESS  OF  LAW.  363 

statute,  whereby  private  property  is  taken  for  the  State, 
or  under  its  direction,  without  compensation  made  or  se- 
cured to  the  owner,  is  wanting  in  the  due  process  of  law 
required  by  the  14th  Amendment.  Chicago,  B.  &  Q. 
E'y  Co.  V.  City  of  Chicago,  166  U.  S.,  226. 

Where  several  railroad  companies  use  the  tracks  of  a 
railroad,  under  a  viaduct,  in  a  city,  some  as  lessees  of 
the  others,  under  an  agreement  the  terms  of  which  are 
unknown  to  the  authorities,  it  can  not  be  held  that  a 
statute  and  ordinance  throwing  on  the  lessor  the  burden 
of  repairs  is  a  denial  of  equal  protection.  Chicago,  B. 
&  Q.  K'y  V.  mbraska,  170  U.  S.,  57. 

What  is  depriving  of  liberty  without  due  process  of 
law. — The  "liberty"  of  which  a  person  can  not  be  de- 
prived without  due  process  of  law  includes  not  only  the 
right  to  be  free  from  mere  physical  restraint  of  his  per- 
son by  incarceration,  but  the  term  is  deemed  to  embrace 
the  right  of  a  citizen  to  be  free  in  the  employment  of  his 
faculties ;  to  be  free  to  use  them  in  lawful  ways ;  to  earn 
his  livelihood  by  any  lawful  calling ;  to  pursue  any  law- 
ful avocation,  and  for  that  purpose  to  enter  into  lawful 
contracts.  A  State  statute  which  prohibits  a  citizen  of 
the  State,  under  an  open  policy  of  marine  insurance,  ef- 
fected outside  the  State,  from  sending  a  letter  by  mail 
or  a  telegram  describing  particular  goods  then  within 
the  State,  operates  to  deprive  of  liberty  without  due  pro- 
cess of  law.     Allgeyer  v.  Louisiana,  165  U.  S.,  578. 

Due  process  of  laWj  when  secured. — ^Due  process  of 


364  CONSTITUTION  OF  UNITED  STATES.  [Am'tS, 

law,  within  the  meaning  of  the  14th  Amendment,  is  se- 
cured, if  the  laws  operate  on  all  alike,  and  do  not  sub- 
ject the  individual  to  an  arbitrary  exercise  of  the  powers 
of  government.  Duncan  v.  Missouri,  152  U.  S.,  377 ; 
Giozza  V.  Tiernan,  148  U.  S.,  657 ;  Mo.  Pac.  E.  Co.  v. 
Mackej,  127  U.  S.,  205 ;  Minn.  &  St.  L.  K.  Co.  v.  Her- 
rick,  127  U.  S.,  210;  Leeper  v.  Texas,  139  U.  S.,  462. 

A  State  legislature  performs  its  whole  duty  in  pro- 
viding due  process  of  law,  when  it  enacts  laws  for  the 
governance  of  its  courts,  while  exercising  their  respec- 
tive jurisdictions,  which,  if  followed,  will  afford  the 
necessary  protection  to  the  parties.  The  fact  that  the 
judge  may  err  does  not  cast  the  State  in  violation  of 
constitutional  obligations.  Arrowsmith  v.  Harmoning, 
118  U.  S.,  194. 

Due  'process  of  law,  as  affecting  proceedings  in  courts. 
Too  short  notice, — Five  days'  notice  to  a  non-resident  of 
a  suit  to  foreclose  a  vendor's  lien,  where  it  would  take 
four  days'  constant  travel  to  reach  the  place  of  trial,  is 
insufficient  to  constitute  due  process  of  law.  Roller  v. 
Holly,  176  U.  S.,  398. 

Each  State  construes  its  own  laws,  with  respect  to  ad- 
mission to  practice  before  its  own  courts.  In  re  Lock- 
wood,  154  U.  S.,  116. 

The  State  has  full  control  over  the  procedure  in  its 
CQurts  both  in  civil  and  criminal  cases  subject  only  to 
the  qualification  that  such  proceeding  must  not  work  a 
denial  of  fundamental  rights  or  conflict  with  specific  and 


Art.  XIV.]  DUE  PROCESS  OF  LAW.  365 

applicable  provisions  of  tlie  Federal  Constitution. 
Brown  v.  iN'ew  Jersey,  175  U.  S.,  172 ;  Ex  parte  Reggel, 
114  U.  S.,  642 ;  Iowa  Cent.  R^  Co.  v.  Iowa,  160  U.  S., 
389 ;  Chicago,  B.  &  Q.  R.  Co.  v.  Chicago,  166  U.  S., 
226. 

Administration  of  estates  of  living  persons. — When  a 
court  of  probate  appoints  an  administrator  of  the  estate 
of  a  living  person,  who  has  been  absent  and  not  heard 
from  for  over  seven  years,  such  appointment  being  madfe 
after  published  notice  and  on  the  presumption  that  he  is 
dead,  the  living  person  having  no  notice  in  fact  of  the 
proceedings,  the  proceedings  are  without  jurisdiction; 
and  the  person,  whose  lands  are  sold  under  such  admin- 
istration to  pay  his  debts,  is  deprived  of  his  property 
without  due  process  of  law.  Scott  v.  Mc!N*eal,  154  U.  S., 
34. 

When  procedure  in  courts  is  ''due  process  of  law" — 
When  the  legislature  of  a  State  enacts  laws  which  pro- 
vide for  the  government  of  its  courts  while  exercising 
their  respective  jurisdictions  which,  if  followed,  will 
furnish  parties  the  necessary  constitutional  protection,  it 
performs  its  whole  duty  to  the  Constitution.  The  Su- 
preme Court  refused  to  reverse  the  judgment  of  the 
State  court,  where  the  question  turned  on  the  validity 
of  a  sale  of  land  by  a  guardian,  where  the  only  irregu- 
larity was  that  the  Probate  Court  dispensed  with  the 
giving  of  a  bond.  This  was  held  not  a  depriving  of  the 
ward  of  his  property  without  due  process  of  law,  such  aa 


366  CONSTITUTIOIS^  OF  UlS^ITED  STATES.  [AlTl'tS, 

to  Invoke  Federal  jurisdiction.  Arrowsmith  v.  Har- 
moning,  118  U.  S.,  194. 

The  first  section  of  the  14th  Amendment  to  the  Con- 
stitution of  the  United  States  contemplates  the  protec- 
tion of  persons  and  to  prevent  their  being  denied  the 
equal  protection  of  the  laws.  It  does  not  prohibit  the 
States  from  prescribing  the  jurisdiction  of  their  own 
courts,  either  as  to  territorial  limit,  subject-matter  or 
amount.     Missouri  v.  Lewis,  101  U.  S.,  22. 

When  party  not  entitled  to  jury  trial  as  due  process  of 
law. — The  provision  of  the  14th  Amendment  that  a 
State  shall  not  deprive  any  person  of  life,  liberty  or 
property  without  due  process  of  law  does  not  prevent 
the  State  from  giving  jurisdiction  to  courts  of  equity  of 
a  suit  brought  by  the  owner  of  an  equitable  interest  in 
land  to  establish  his  rights  against  the  holder  of  the 
legal  title,  because  it  deprives  the  holder  of  the  legal 
title  of  the  right  to  trial  by  jury  which  he  would  have  in 
a  suit  at  law.  Church  v.  Kelsey,  121  U.  S.,  282 ;  Pem- 
bina Mining  Co.  v.  Penn.,  125  U.  S.,  181. 

Proceedings  according  to  the  common  law  for  con- 
tempt of  court  are  not  subject  to  the  right  of  trial  by 
jury  and  are  "due  process  of  law"  within  the  meaning  of 
the  14th  Amendment.  Eilenbecker  v.  Plymouth  Co., 
134  U.  S.,  31 ;  Ex  parte  Terry,  128  U.  S.,  289. 

A  jury  is  not  an  essential  to  "due  process  of  law"  in 
proceedings  for  contempt.  Tinsley  v.  Anderson,  171 
U.  S.,  101.     In  re  Debs,  158  U.  S.,  564,  568. 


Art.  Xiy.]  DUE  PROCESS  OF  LAW.  36 1 

The  equal  protection  of  the  laws  is  not  denied  in  pro- 
ceedings for  contempt,  where  the  same  course  of  pro- 
cedure is  followed  that  would  be  pursued  in  a  proceed- 
ing against  any  other  person  under  similar  circum- 
stances.    Id. 

"Due  process  of  law"  does  not  require  jury  trial  in 
quo  warranto  proceedings  in  a  State  court.  Wilson  v. 
mrth  Carolina,  169  U.  S.,  586,  600. 

Struck  juries. — The  States  may  by  statute  provide 
for  struck  juries  and  such  provisions  are  not  in  contra- 
vention of  any  provision  of  the  Federal  Constitution; 
and  the  decision  of  the  highest  court  of  the  State  that 
they  are  constitutional  in  that  State  is  conclusive  on  the 
Federal  Supreme  Court.  Brown  v.  !N'ew  Jersey, 
175  U.  S.,  172. 

Due  'process  of  law — procedure.  Libel  in  a  pleading 
— -Right  of  action  may  he  denied. — A  person  is  not  de- 
prived of  his  reputation,  even  if  it  constitutes  property, 
without  due  process  of  law,  by  denying  his  right  of  ac- 
tion for  damnatory  words  published  in  a  pleading,  where 
the  matter  complained  of  as  defamatory  was  pertinent 
and  material.     Abbott  v.  Bank,  175  U.  S.,  409. 

Who  concluded  by  judgment. — One  who  actively  de- 
fends an  action  to  which  he  is  not  technically  a  party, 
can  not  claim,  when  brought  in  by  rule  to  show  cause  af- 
ter judgment  rendered,  that  he  was  denied  due  process 
•of  law.  Louisville,  etc.,  B.  Co.  v.  Schmidt,  177  U.  S., 
^30. 


368  cojn'stitutiojS"  of  united  states.       [Am'ts^ 

Setting  aside  or  enjoining  judgment  due  process  of 
law. — A  bill  in  equity  to  invalidate  a  judgment  against 
the  defendant  in  an  action  for  tort  committed  under 
military  authority,  'in  accordance  with  the  usages  of 
civilized  warfare  and  as  an  act  of  public  war  is  "due 
process  of  law"  and  not  in  conflict  with  the  Constitution 
of  the  United  States.  Freeland  v.  Williams,  131  U.  S., 
405. 

What  steps  in  court  procedure  are  not  inconsistent 
with  '^due  process  of  law/' — A  bill  in  equity  brought  to 
invalidate  a  judgment  obtained  in  trespass  de  bonis  as- 
portatis  for  the  taking  and  conversion  of  cattle,  which 
were  taken  under  military  authority  in  time  of  and  as 
an  act  of  public  war,  and,  also,  to  enjoin  its  enforcement, 
is  due  process  of  law.  A  judgment  obtained  for  such 
act  is  not  a  contract  and  is  not  impaired  by  such  an  act 
as  that  of  West  Virginia  in  1872,  which  forbade  the 
sale  or  seizure  of  any  property  under  final  process 
founded  upon  such  judgments.  Freeland  v.  Williams^ 
131  U.  S.,  405. 

The  14th  Amendment  does  not  limit  the  powers  of 
States  in  dealing  with  crime  within  their  borders,  except 
that  no  State  can  deprive  particular  persons,  or  classes 
of  persons,  of  equal  and  impartial  justice  under  the  law. 
Laws  operating  on  all  alike,  and  not  subjecting  the  in- 
dividual to  the  arbitrary  powers  of  government  unre- 
strained by  the  established  principles  of  private  right 
and  distributive  justice,   secure  due  process  of  law. 


Art.  XI v.]  DUE  PEOCESS  OF  LAW.  369 

Whether  statutes  of  a  State  have  been  duly  enacted  in 
accordance  with  the  Constitution  of  such  State  is  not  a 
Federal  question.  The  decision  of  the  State  Court  as  to 
what  are  laws  in  that  State  are  binding.  Leeper  v. 
Texas,  139  U.  S.,  462. 

The  provisions  of  a  statute  of  a  State  (Arts.  1242- 
1245  of  Texas),  which  construe  a  special  appearance 
into  a  general  appearance  do  not  violate  the  14th 
Amendment.     York  v.  Texas,  137  U.  S.,  15.  i 

The  14th  Amendment  was  not  designed  to  interfere 
with  the  power  of  a  State  to  protect  the  lives,  liberty  and 
property  of  its  citizens,  nor  with  the  exercise  of  that 
power  in  the  adjudications  of  courts  of  the  States  in 
administering  the  process  provided  by  its  laws.  In  re 
Converse,  137  U.  S.,  624.  One  convicted  of  embezzle- 
ment under  one  section  of  the  Michigan  statute,  con- 
fessed to  embezzlement  under  another  section,  and  was 
sentenced  accordingly.  Held^ihdii  this  was  not  a  viola- 
tion of  the  14th  Amendment.     Id. 

One  is  not  deprived  of  liberty  without  due  process  of 
law,  in  violation  of  this  Amendment,  by  being  tried  and 
sentenced  by  a  judge  of  a  court  who  is  a  de  facto  judge 
of  a  court  de  jure.     In  re  Manning,  139  U.  S.,  504. 

The  laws  of  Missouri  provide  that  in  all  capital  cases, 
except  in  cities  having  a  population  of  over  100,000,  the 
State  shall  be  allowed  eight  peremptory  challenges  to 
jurors,  and  in  such  cities,  shall  be  allowed  fifteen.     Thia 

is  not  a  denial  of  the  equal  protection  of  the  laws  within' 
24 


370  CONSTITUTION  OF  UNITED  STATES.  [Am'tS, 

the  meaning  of  the  14th  Amendment.  Hayes  v.  Mis- 
souri, 120  U.  S.,  68. 

A  person  was  arrested  in  Texas  on  requisition  from 
Alabama,  on  an  indictment  for  embezzlement  and  lar- 
ceny. It  was  sought  to  obtain  his  discharge  in  Texas  on 
habeas  corpus  on  the  ground  of  the  insufficiency  of  the 
indictment.  The  Texas  court  decided  that  he  should  be 
extradited ;  and  the  Supreme  Court  of  the  United  States 
held  that  this  decision  denied  no  right  secured  by  the 
Constitution.     Pearce  v.  Texas,  155  U.  S.,  311. 

The  statute  of  Missouri,  as  construed  by  the  Supreme 
Court  of  that  State,  authorizes  a  special  administrator, 
who  is  placed  in  charge  of  the  estate  pending  the  contest 
of  the  will,  to  have  a  final  settlement  of  his  accounts 
without  notice  to  the  distributees  of  the  estate,  is  con- 
clusive in  the  absence  of  fraud.  The  administrator  or 
radministratrix  with  the  will  annexed,  or  executor,  repre- 
•sents  in  such  matters  all  who  claim  under  the  will.  Ro- 
Bards  v.  Lamb,  127  U.  S.,  58. 

A  statute  framed  in  accordance  with  the  laws  of 
Texas  charging  that  the  prisoner  at  a  time  and  place 
named,  "did  unlawfully  and  with  express  malice  afore- 
thought kill  one  J.  M.  S.  by  shooting  him  with  a  gun, 
contrary,"  etc.,  does  no  violation  to  the  14th  Amend- 
ment.    Caldwell  v.  Texas,  137  U.  S.,  692. 

When  a  prisoner  sentenced  to  death  carries  his  case  to 
an  appellate  court  due  process  of  law  does  not  require 
that  he  be  present  when  the  appellate  court  pronounces 


Art.  Xiy.]  DUE  PROCESS  OF  LAW.  371 

its  judgment,  as,  if  it  be  of  affirmance,  no  new  sentence 
is  imposed  but  merely  a  direction  given  that  the  former 
be  carried  into  execution.  Schwab  v.  Berggren,  143 
U.  S.,  442 ;  Fielden  v.  Illinois,  143  U.  S.,  452. 
.  One  under  sentence  of  death  in  a  State  court  insisted 
that  the  warrant  for  his  execution  was  issued  contrary  to 
the  State  statute.  The  court  decided  against  him.  This 
is  held  by  the  Supreme  Court  as  not  to  involve  denial  of 
due  process  of  law.  Lambert  v.  Barrett,  159  U.  S., 
660. 

The  dismissal  of  an  appeal  in  a  criminal  case  by  a 
State  Supreme  Court,  after  the  criminal  has  escaped, 
unless  he  shall  surrender  or  be  recaptured,  is  not  a  tak- 
ing without  due  process  of  law.  Allen  v.  Georgia,  16  G 
U.  S.,  138. 

A  right  of  review  in  capital  cases  is  not  an  indispens- 
able element  of  due  process  of  law,  as  the  right  of  appeal 
may  be  regulated  in  each  State  by  its  own  laws.  Mc- 
Kane  v.  Durston,  153  U.  S.,  684,  687;  Andrews  v. 
Swartz,  156  U.  S.,  272. 

A  statute  of  a  State  providing  that  a  prosecutor  may 
be  adjudged  to  pay  costs,  if  it  be  found  that  he  had  insti- 
tuted the  prosecution  maliciously  and  without  probable 
cause,  is  valid.     Lowe  v.  Kansas,  163  U.  S.,  81. 

An  indictment  which  does  not  specify  the  decree  of 
murder  charged,  does  not  deny  the  accused  the  equal 
protection  of  the  law,  nor  constitute  lack  of  due  process 
of  law.     Bergemann  v.  Backer,  157  U.  S.,  655. 


372        CONSTITUTION  OF  UNITED  STATES.    [Am'tS, 

Where  the  prosecution  of  a  capital  offense  is  by  in- 
formation instead  of  indictment,  it  is  due  process  of 
law.  Mc:N'ulty  v.  California,  149  U.  S.,  654.  Vincent 
V.  Same,  149  U.  S.,  648. 

The  question  whether  a  proceeding  is  "due  process  of 
law,"  within  the  meaning  of  the  Constitution,  is  inde- 
pendent of  the  question  whether  the  proceeding  was  by 
ordinary  action  or  motion  or  other  steps,  so  that  it  was 
according  to  the  statute  which  provided  for  notice  and 
opportunity  to  be  heard.  Iowa  Cent.  R'y  v.  Iowa,  160 
U.  S.,  389. 

The  Kansas  statute,  allowing  a  fee  to  the  plaintiff's 
attorney,  on  recovering  damages  resulting  from  fire 
caused  by  the  operation  of  railroad  trains,  is  a  regula- 
tion, reasonably  relevant  to  the  object  sought,  and  does 
not  contravene  the  14th  Amendment.  Atchison,  etc.,  R. 
Co.  V.  Matthews,  174  U.  S.,  96. 

A  State  statute  which  provides  for  an  inquisition  of 
lunacy  after  verdict  in  a  capital  case,  by  a  jury,  not  in 
the  presence  of  a  court  or  a  judge,  is  not  a  denial  of  due 
process  of  law.     !N'obles  v.  Georgia,  168  U.  S.,  398. 

A  statute  requiring  a  bond  as  a  prerequisite  to  the  is- 
sue of  an  attachment  against  a  resident,  when  sued  out 
against  a  resident,  but  requiring  no  bond  when  sued  out 
against  a  non-resident,  is  not  a  violation  of  the  14th 
Amendment.  Central  Loan  and  Trust  Co.  v.  Campbell 
Commission  Co.,  173  U.  S.,  84. 

Escheat. — A    statute    providing    for    judgment    of 


Art.  XIV.]  DUE  PROCESS  OF  LAW.  373 

escheat,  after  due  notice  by  publication  to  unknown 
heirs,  is  due  process  of  law.  Hamilton  v.  Brown,  161 
U.  S.,  256. 

The  repeal  of  a  statute  of  limitations,  as  applied  to  a 
debtor,  against  whom  the  right  of  action  is  already 
barred,  does  not  deprive  him  of  his  property  in  violation 
of  the  14th  Amendment.  Campbell  v.  Holt,  115  U.  S., 
620. 

A  State  law  simply  forbidding  a  defendant  to  come 
into  court  and  challenge  the  validity  of  service  upon  him 
in  a  personal  action  without  submitting  himself  to  the 
jurisdiction  of  the  court,  but  which  does  not  attempt 
to  restrain  him  from  fully  protecting  his  person,  his 
property  and  his  rights  against  any  attempt  to  enforce  a 
judgment  rendered  without  due  process  of  law,  is  not 
forbidden  by  the  Fourteenth  Amendment.  Kauffman 
v.  Wootters,  138  U.  S.,  285. 

It  is  so  held  where  a  receiver  was  appointed  and  an 
officer  of  the  corporation  was  committed  for  contempt 
till  he  obeyed  an  order  which  he  had  refused  to  obey. 
His  imprisonment  was  not  indefinite  or  uncertain  be- 
cause he  could  at  any  time  obtain  his  discharge  by  obey- 
ing the  order.  A  jury  trial  is  not  essential  to  due  pro- 
cess of  law  in  a  contempt  proceeding.  Tinsley  v.  An- 
derson, 171  U.  S.,  101. 

"The  Fourteenth  Amendment  does  not  profess  to  se- 
cure to  all  persons  in  the  United  States  the  benefit  of 
the  same  laws  and  the  same  remedies.     Great  diversities 


3T4:  CONSTITUTIOISr  OF  UNITED  STATES.  [Alll'tS, 

in  these  respects  may  exist  in  two  States  separated  only 
by  an  imaginary  line ;  on  one  side  of  this  line  there  may 
be  a  right  of  trial  by  jury,  and  on  the  other  side  no  snch 
right.  Each  State  prescribes  its  own  modes  of  judi- 
cial proceeding.  Missouri  v.  Lewis,  101  U.  S.,  22,  31. 
And  the  statute  of  Missouri,  which  increased  the  num- 
ber of  challenges  allowed  the  State  in  capital  cases  to 
15  (only  eight  being  allowed  elsewhere)  in  cities  of  over 
100,000  inhabitants,  does  not  deny  to  persons  accused 
of  crime  the  equal  protection  of  the  laws."  Hayes  v. 
Missouri,  120  U.  S.,  68. 

VIII.  Instances  where  exercise  of  eminent  domain 
has  been  held  to  he  hy  due  ^process  of  law. 

Condemnation  'proceedings,  whereby  property  is  taken 
for  public  use,  are  not  without  due  process  of  law  merely 
because  the  courts  change  their  rulings  to  hold  that  the 
proceedings  shall  be  before  a  common-law  jury  rather 
than  a  jury  of  inquest,  as  theretofore  decided,  nor  be- 
cause the  statute  prescribes  that  certain  objections  shall 
be  deemed  waived  if  not  specified  at  a  particular  stage  in 
the  proceedings.  Backus  v.  Depot  Co.,  169  U.  S.,  557, 
556. 

A  statute  of  California  for  the  widening  of  a  street 
provided  the  usual  method  of  taking  property  for  that 
public  use.  When  pursued  in  the  usual  method  and 
assessment  is  made  according  to  benefits,  and  allowing 
an  aggrieved  person  to  apply  to  the  court  for  rehearing, 
it  is  due  process  of  law.     Lent  v.  Tillson,  140  U.  S., 


Art.  XIV.]  DUE  PROCESS  OF  LAW.  375 

316,  325  ;  following  in  principle  the  Kentucky  Eailroad 
Tax  Cases,  115  U.  S.,  321,  331 ;  Spencer  v.  Merchant, 
125  U.  S.,  345,  355. 

Servitudes  imposed  without  compensation. — The  im- 
position of  a  servitude  by  the  public  authorities  upon 
land  owned  by  a  citizen  of  another  State  for  the  purpose, 
under  the  same  law  that  imposed  like  servitude  on  a  resi- 
dent owner  under  like  circumstances,  is  equal  pro- 
tection and  due  process  of  law.  So  held  under  the 
Louisiana  levee  laws,  where  the  taking  is  held  to  be  un- 
der the  police  power  and  that  no  one  is  entitled  to  com- 
pensation for  such  land  as  is  used  to  build  levees  against 
the  river.     Eldridge  v.  Trezevant,  160  U.  S.,  462. 

Drainage  laws,  when  valid. — The  drainage  laws  of 
"New  Jersey,  providing  for  draining  low,  wet  or  sandy 
lands,  on  petition  of  some  of  the  owners  and  assessing 
the  expense  on  the  owners,  by  commissioners,  does  not 
deprive  of  property  without  due  process  of  the  law. 
Wurts  V.  Hoagland,  114  U.  S.,  606. 

Assessment  of  damages  hy  commission  is  due  process 
of  law  J  in  condemnation  proceedings,  if  there  be  right  of 
review  by  the  courts.  Long  Island  Water  Supply  Co. 
V.  Brooklyn,  166  U.  S.,  685.  There  is  no  denial  of  due 
process  of  law  in  making  the  findings  of  the  jury  or  com- 
missions final,  when  the  courts  can  determine  in  review 
whether  an  erroneous  basis  were  adopted.     Id. 

When  a  contract  with  a  city  has  been  declared  ultra 
vires  and  void,  it  can  not  be  impaired,  and  subsequent 


376  coxsTiTunoy  of  fxitzd  states.       [Am'ts, 

legislation  of  the  State  in  respect  to  it,  authorizing  a 
tax  which  the  void  contract  exempted  the  contractor 
from,  is  not  a  taking  of  property  without  due  process  of 
4aw.  City  of  Xew  Orleans  v.  Xew  Orleans  Water 
Works  Co.,  142  F.  S.,  79. 

The  statute  of  a  State,  authorizing  any  person  to  erect 
mnd  maintain  a  watermill  and  mill  dam  on  streams  not 
navigable,  paying  to  the  owners  of  lands  flowed  damages 
assessed  in  a  judicial  proceeding,  does  not  deprive  them 
of  their  property  without  due  process  of  law,  in  violation 
of  the  Fourteenth  Amendment. 

In  condemnation  proceedings  conmienced  under  a 
State  statute  for  condemnation  of  land  for  the  uses  of  a 
railway,  a  published  notice  to  non-residents  is  sufficient 
notice  and  is  "due  process  of  laV  as  applied  in  such 
eases.  Huling  v.  Kaw  Valley,  ete.,  R.  Co.,  130  U.  S., 
559. 

Where-,  under  the  Constitution  and  laws  of  a  State, 
eonsequential  damages  to  property  abutting  on  a  street 
are  n<^  recoverable,  a  statute  authorizing  the  occupation 
<rf  a  portion  of  such  street,  not  adjacent  to  the  property, 
by  a  railroad  company  without  providing  compensation 
to  the  owner,  is  not  a  deprivation  of  property  without 
due  process  of  law.     Meyer  v.  Richmond,  172  U.  S.,  83. 

A  decision  of  a  State  supreme  court  that  the  building 
and  operation  of  an  elevated  railroad  along  one  side  of 
a  street  does  not  constitute  an  injury  or  destruction  of 
property  on  the  other  side  can  not  be  reviewed  by  the 


Art.  XIV.]  DUE  PROCESS  OF  LAW.  377 

United  States  Supreme  Court  on  tlie  theory  that  it  is 
a  taking  of  property  without  compensation.  Marchant 
V.  Penn.  R.  Co.,  153  U.  S.,  380.  Xor  does  the  aUow- 
ance  of  damages  to  one  on  one  side  as  for  a  taking  and 
denial  of  damages  to  one  on  the  other  side  amount  to 
denial  of  equal  protection  of  the  laws.     Id. 

The  Act  of  June  29, 1848,  providing  for  the  improve- 
ment of  the  Fox  and  Wisconsin  rivers,  and  for  connect- 
ing the  same  by  a  canal,  declared  that  any  water  power 
created  by  such  dams  should  belong  to  the  State.  The 
State  afterwards  granted  all  these  rights  and  privileges 
to  an  improvement  company,  and  to  this  company  the 
owner  of  certain  lots  granted  the  right  to  erect  and  for- 
ever maintain  an  embankment  in  front  of  the  lots.  It 
was  held : — 

1.  That  this  operated  as  a  surrender  of  all  riparian 
rights,  including  any  claim  the  owner  of  the  lots  might 
have  to  the  surplus  water. 

2.  That  though  the  act  of  184S  failed  to  provide  ade- 
quately for  compensation  of  land  owners  whose  lands 
might  have  been  taken  for  such  improvement,  to  which 
abutting  owners  were  entitled,  yet — 

3.  The  property  and  franchises  of  the  improvement 
company  having  been  transferred  to  a  canal  company 
(by  foreclosure,  purchase  and  reorganization),  this  com- 
pany subsequently  conveyed  to  the  United  States  all  its 
improvements,  dams,  etc,  reserving  the  right  to  the  sur- 
plus water  power  created  by  the  dam,  the  duty  to  make 


378  CONSTITUTIOi!^  OF  UNITED  STATES.  [Am'^tS-, 

compensation  where  riparian  owners  were  entitled  to  it, 
followed  the  public  use,  and  the  United  States  became 
liable  therefor. 

4.  The  Congress  by  Act  of  1875  (18  Stat,  at  L.,  506) 
made  provision  for  compensating  all  owners  who  had 
failed  to  take  measures  to  obtain  compensation  during 
the  14  years  the  act  providing  the  compensation  was 
in  force  (it  having  been  repealed  in  1888),  were  deemed 
to  have  waived  their  right  to  compensation. 

5.  A  land  owner,  who  had  thus  waived  his  right  to 
compensation,  could  not  after  thus  estopped,  take  the 
remedy  in  his  own  hands,  but  could  be  enjoined  from  so- 
doing  at  the  suit  of  the  canal  company  owning  the  sur- 
plus water  not  required  for  uses  of  navigation.  Green 
Bay  &  Miss.  Canal  Co.  v.  The  Kaukauna  Water  Power 
Co.,  142  U.  S.,  254. 

This  litigation  was  continued  in  another  phase.  The 
Supreme  Court  of  Wisconsin  decided  in  a  later  suit 
brought  by  the  Patten  Paper  Co.  against  the  Canal  Com- 
pany and  others,  that  the  water  power  could  not  be  di- 
verted from  its  natural  channel,  by  the  State  or  it& 
grantees,  to  the  injury  of  lower  riparian  owners, 
through  the  canal  or  sluiceways  therefrom ;  but  that  the 
Canal  Company  were,  in  the  use  of  the  power,  under  the 
general  rule  that  the  owner  of  a  dam  must  return  the 
water  to  the  stream  in  such  a  manner  and  at  such  a  place 
as  not  to  deprive  lower  riparian  owners  of  its  use  as  it 
was  accustomed  to  flow  past  their  lands.     Green  Bay  & 


Art.  XIV.]  DUE  PROCESS  OF  LAW.  379 

Miss.  Canal  Co.  v.  Kaukauna  Water  Power  Co.,  90 
Wis.,  370.  This  case  was  carried  to  the  Supreme  Court 
of  the  United  States  on  writ  of  error,  and  reversed  in 
Green  Bay  &  Miss.  Canal  Co.  v.  Patten  Paper  Company, 
172  U.  S.,  58,  the  court  holding  that  the  reservation 
to  the  State  of  all  the  water  power  incidentally  created 
in  making  the  public  improvement  was  lawful,  and  the 
subsequent  conveyance  carried  full  title  to  the  canal 
company  free  from  claims  of  other  riparian  proprietors, 
whose  remedy,  if  injured,  was  by  compensation  to  be  ob- 
tained by  statutes  under  which  the  improvement  was 
made;  and  that  the  sole  power  to  regulate  the  disposi- 
tion or  use  of  the  surplus  waters  accumulated  by  the 
dams  built  became  vested  in  the  United  States,  when  it 
acquired  and  took  the  improvements ;  and  that  the  canal 
company  is  the  sole  owner  of  the  power,  subject  only  to 
the  control  and  regulation  of  the  water  by  the  United 
States. 

Taxing  personalty  of  non-resident. — ^Under  the  laws  of 
Minnesota,  investments  by  a  non-resident  are  subject  to 
taxation,  when  made  by  a  resident  agent,  who  is  em- 
ployed to  invest  and  re-invest  moneys,  at  whose  office  the 
loans  are  made  payable  and  who  retains  the  mortgages 
securing  them,  and  to  whom  the  notes  taken  from  the 
loans  are  returned  from  time  to  time,  whenever  required 
for  the  purpose  of  renewal,  collection  or  foreclosure  of 
securities,  notwithstanding  the  notes  and  securities  are 
sent  out  of  the  State  to  the  principal,  and  the  agent  has^ 


380        CONSTITUTION  OF  UNITED  STATES.    [Am'ts, 

no  authority  to  execute  satisfactions  of  mortgages,  un-, 
der  the  rule  that  the  creditor  may  give  a  business  situs 
to  his  property  in  the  chose  in  action  elsewhere  than  his 
domicile.     Bristol  v.  Washington  Co.,  177  U.  S.,  133. 

Evading  taxing  laws  of  State. — While  United  States 
treasury  notes  are  not  as  a  rule  taxable  by  the  States, 
yet  where  a  person  who  had  moneys  on  a  general  deposit, 
drew  out  a  day  or  two  before  the  day  of  assessment, ' 
and  took  the  amount  in  legal  tender  notes,  and,  which  he 
re-deposited  as  a  special  deposit,  this  was  held  an  eva- 
sion  of  the  State  tax  laws,  and  he  could  not  plead  exemp- 
tion of  the  same  from  taxation.  Shotwell  v.  Moore, 
129  U.  S.,  590. 

The  re-assessment  of  property  grossly  undervalued  at 
the  first  assessment  so  as  to  impose  upon  it  its  just  bur- 
den of  taxation,  does  not  violate  the  Constitution  in  de- 
priving of  property  without  due  process  of  law.  Weyer- 
haueser  v.  Minnesota,  176  IT.  S.,  550.  And  the  failure 
to  provide  for  a  rehearing  before  the  governor,  pursu- 
ant to  Gen.  Laws,  1893,  c.  157,  does  not  make  the  pro- 
ceeding void  for  want  of  due  process  of  law.     Id.,  485. 

Re-assessment  of  taxes,  where  the  first  assessment 
failed  for  irregularity  of  notice,  is  not  in  violation  of 
the  Fourteenth  Amendment  because  of  short  notice 
given  to  the  owner.  Bellingham  Bay,  etc.,  Co.  v.  New 
Whatcom,  172  U.  S.,  320./ 

Taxes  for  highway  improvements. — Where  the  legis- 
lature of  a  State,  in  exercise  of  its  taxing  power,  directs 


Art.  XI v.]  DUE  PROCESS  OF  LAW.  381 

that  the  expense  of  laying  out,  grading  or  repairing  a 
street  be  assessed  upon  the  owners  of  lands  benefited 
thereby,  and  determines  the  whole  amount  of  the  tax 
and  what  lands  are  benefited;  and  provides  for  notice 
to  and  hearing  of  the  owner  at  each  stage  upon  the  ques- 
tion as  to  the  proposition  of  the  tax  to  be  assessed  upon 
his  land,  there  is  no  taking  of  his  property  in  violation 
of  the  Fourteenth  Amendment.  Spencer  v.  Merchant, 
125  IT.  S.,  345;  Walston  v.  N^evin,  128  U.  S.,  578. 

In  such  matters  of  assessment,  neither  the  corporate 
agency  by  which  the  work  is  done,  the  excessive  price 
which  the  statute  allows  therefor,  nor  the  relative  im- 
portance which  the  work  bears  to  the  value  of  the  land, 
nor  that  the  assessments  are  unequal  as  regards  the  bene- 
fits conferred,  nor  that  personal  judgments  are  rendered 
for  the  amounts  assessed  are  matters  in  which  the  State 
authorities  are  controlled  by  the  Federal  Constitution. 
Spencer  v.  Merchant,  125  U.  S.,  345 ;  Stanley  v.  Super- 
visors, 121  U.  S.,  535,  550;  Mobile,  v.  Kimball,  102 
U.  S.,  691 ;  Hagar  v.  Keclamation  Dist,  111  U.  S.,  701 ; 
United  States  v.  Memphis,  97  U.  S.,  284;  Laramie  Co. 
V.  Albany  Co.,  92  U.  S.,  307 ;  Walston  v.  :N'evin,  128 
U.  S.,  578. 

Provision  for  notice  by  publication  or  otherwise,  to 
each  owner  of  land  to  be  assessed  for  a  highway  im- 
provement and  for  hearing  him  at  some  stage  of  the 
proceedings,  is  due  process  of  law.  Bauman  v.  Ross, 
167  U.  S.,  548. 


382        CONSTITUTION  OF  UNITED  STATES.    [Am'tS, 

Notices  of  tax  proceedings,  how  far  necessary. — The 
statute  of  a  State  providing  for  the  assessment  and  col- 
lection of  taxes,  which  gives  notice  of  the  proposed  as- 
sessment to  an  owner  of  property  to  be  affected  by  re- 
quiring him  at  a  designated  time  and  place  to  be  pres- 
ent and  give  a  statement  of  his  property,  with  an  esti- 
mate of  its  value,  and  gives  opportunity  to  be  heard 
and  also  resort  to  the  courts  to  correct  error  or  unfair- 
ness in  assessment,  does  not  deprive  of  property  without 
due  process  of  law,  within  the  meaning  of  the  Four- 
teenth Amendment.  Kentucky  Railroad  Tax  Cases, 
115  IT.  S.,  321.     . 

A  notice,  given  by  the  statute,  of  the  time  and  place^ 
at  which  the  assessment  of  taxes  is  to  be  made  is  all 
that  due  process  requires  in  the  matter  of  notice  of  tax 
proceedings.     Merchants',    etc.,    Bank  v.    Penn.,    167 1 


U.  S.,  461.  .  I 

"Due  process  of  law"  does  not  require  personal  no- 1 
tice  of  assessment  of  one's  property  for  taxation;  nor 
is  equal  protection  denied  by  allowing  to  railroad  com- 
panies only  one  hearing  before  a  county  board  and  an 
appeal  to  a  State  board.  Pittsburg,  etc.,  Co.  v.  Backus, 
154  U.  S.,  421.  Denial  by  a  State  court,  after  a 
fair  trial,  of  damages  for  depreciation  of  railroad 
property,  is  not  a  taking  without  due  process  of  law.,  Id^ 


Art.  XY.]  EIGHT  OF  SUFFRAGE.  383 

AETICLE  XY. 

THE  EIGHT  OF  SUFFEAGE. 

Section  1.  "The  right  of  citizens  of  the  United  States 
to  vote  shall  not  be  denied  or  abridged  by  the  United 
States,  or  by  any  State,  on  account  of  race,  color,  or  pre- 
vious condition  of  servitude. 

Section  2.  "The  Congress  shall  have  power  to  enforce 
this  article  by  appropriate  legislation." 

Decisions  under  the  Fifteenth  Amendment  summar- 
ized.— The  Fifteenth  Amendment  does  not  confer  the 
right  of  suffrage ;  but  it  exempts  citizens  from  discrimi- 
nation on  account  of  their  race,  color  or  previous  condi- 
tion of  servitude,  and  empowers  Congress  by  appropri- 
ate legislation  to  enforce  the  right.  On  this  article 
rests  the  power  of  Congress  over  the  subject  of  voting 
at  State  elections ;  and  such  power  can  be  exercised  by 
providing  a  punishment  only  where  the  wrongful  re- 
fusal to  receive  the  vote  of  a  qualified  elector  is,  because 
of  his  race,  color  or  previous  condition  of  servitude. 
United  States  v.  Keese,  92  U.  S.,  214. 

The  third  and  fourth  sections  of  the  Act  of  May  3d, 
1870  (16  Stats,  at  L.,  140),  provided,  in  effect,  (1)  that 
whenever  by  or  under  the  Constitution  or  laws  of  a 
State,  etc.,  any  act  is  or  shall  be  required  to  be  done  by 
any  citizen  as  a  prerequisite  to  qualify  or  entitle  him 
to  vote,  the  offer  of  such  citizen  to  perform  the  act  re- 
quired to  be  done  "as  aforesaid"  shall,  if  it  fail  to  be 


384  CONSTITUTIOJS^  OF  UNITED  STATES.  [Am'tS, 

carried  into  execution  by  reason  of  the  wrongful  act  or 
omission  "aforesaid"  of  the  person  or  oflficer  charged 
,  with  the  duty  of  receiving  or  permitting  such  perform- 
ance, or  offer  to  perform,  be  deemed  and  held  as  a  per- 
formance in  law  of  such  act ;  and  the  person  so  offering 
and  failing  as  aforesaid,  and  being  otherwise  qualified, 
shall  be  entitled  to  vote  in  the  same  manner  and  to  the 
same  extent  as  if  he  had  in  fact  performed  such  act, 
and  penalties  were  imposed  for  the  refusal  to  receive 
and  count  his  vote,  or  allow  him  to  qualify,  or  by  force, 
bribery,  threats,  intimidation  or  other  unlawful  means, 
hindering,  delaying,  preventing  or  obstructing  any  citi- 
zen from  doing  any  act  required  to  be  done  to  qualify 
him  to  vote  or  from  voting  at  any  election. 

These  sections  were  held  void,  being  penal  and 
strictly  construed  because  their  penal  provisions  were 
not  confined*  to  unlawful  discrimination  on  account  of 
race,  color,  or  previous  condition  of  servitude.  The 
case  arose  upon  an  indictment  against  Reese  for  refus- 
ing as  an  inspector  of  a  municipal  election  to  receive  the 
vote  of  a  colored  citizen.  As  the  two  sections  were  so 
broad  in  their  terms  as  to  cover  wrongful  acts  outside 
of  and  beyond  the  constitutional  jurisdiction  of  Con- 
gress to  legislate  upon  the  subject,  it  was  held  that  Con- 
gress had  not  provided  by  appropriate  legislation  for 
the  punishment  of  an  inspector  for  refusing  to  receive 
and  count  a  vote  at  such  election.  United  States  v. 
Eeese,  92  U.  S.,  214. 


Art.  XV.]  EIGHT  OF  SUFFRAGE.  385 

Although  it  is  true  that  the  Fifteenth  Amendment 
gives  no  affirmative  right  to  the  negro  to  vote,  yet  there 
are  cases,  some  of  which  are  the  following :  "In  all  cases 
where  the  former  slave-holding  States  have  not  removed 
from  their  Constitutions  the  words  Vhite  man'  as  a 
qualification  to  vote,  this  provision  did  in  effect  confer 
upon  him  the  right  to  vote,  because  being  paramount  to 
the  State  law,  it  annulled  the  discriminating  word 
*  white.'  "  And  such  would  be  the  effect  of  any  future 
constitutional  provision  of  a  State  which  should  give  the 
right  of  voting  exclusively  to  white  people  whether 
men  or  women.  !N'eal  v.  Delaware,  103  U.  S.,  370 ; 
Ex  parte  Yarbrough,  110  U.  S.,  651.  In  this  case 
United  States  v.  Eeese,  92  U.  S.,  214,  is  qualified  and 
explained. 

The  Constitution  of  the  United  States  has  not  con- 
ferred the  right  upon  any  one,  and  the  United  States 
have  no  voters  of  their  own  creation  in  the  States. 
Minor  v.  Happersett,  21  Wall.,  178.  'Nor  did  the 
Fourteenth  Amendment  have  this  effect.     Id. 

Sections  5508  and  5520  of  the  Eevised  Statutes 
read  as  follows:  Section  5508.  "If  two  or  more  per- 
sons conspire  to  injure,  oppress,  threaten  or  intimidate 
any  citizen  in  the  free  exercise  or  enjoyment  of  any; 
right  or  privilege  secured  to  him  by  the  Constitution  or 
laws  of  the  United  States  or  because  of  his  having  so 
exercised  the  same,  or  if  two  or  more  persons  go  in  dis- 
guise on  the  highway,  or  on  the  premises  of  another, 
25 


386  CONSTITUTIOI^  OF  UNITED  STATES.  [Am'tS, 

with  intent  to  prevent  or  hinder  his  free  exercise  or  en- 
joyment of  any  right  or  privilege  so  secured,  they  shall 
be  fined  not  more  than  five  thousand  dollars  and  im- 
prisoned not  more  than  ten  years ;  and  shall,  moreover, 
be  thereafter  ineligible  to  any  office  or  place  of  honor, 
profit  or  trust  created  by  the  Constitution  of  the  United 
States." 

Section  5520.  "If  two  or  more  persons  in  any  State 
or  Territory,  conspire  to  prevent  by  force,  intimidation, 
or  threat,  any  citizen  who  is  lawfully  entitled  to  vote, 
from  giving  his  support  or  advocacy,  in  a  legal  manner, 
toward  or  in  favor  of  the  election  of  any  lawfully  quali- 
fied person  as  an  elector  for  President  or  Vice-Presi- 
dent, or  as  a  member  of  the  Congress  of  the  United 
States;  or  to  injure  any  citizen  in  person  or  property 
on  account  of  such  support  or  advocacy,  each  of  such 
persons  shall  be  punished  by  a  fine  of  not  less  than  five 
hundred  nor  more  than  ^ve  thousand  dollars,  or  by 
imprisonment,  with  or  without  hard  labor,  not  less  than 
six  months  nor  more  than  six  years,  or  by  both  such  fine 
and  imprisonment.''  These  provisions  were  held  con- 
stitutional in  Ex  parte  Yarbrough,  110  U.  S.,  651. 

Effect  of  amendment  on  existing  Constitutions  of 
States. — The  adoption  of  the  15th  Amendment  ren- 
dered inoperative  the  existing  Constitution  of  a  State 
whereby  the  right  of  suffrage  was  limited  to  the  white 
race;  and  also  operated  to  enlarge  the  operation  of 
statutes  so  as  to  make  colored  electors  eligible  as  jurors. 
Neal  V.  Delaware,  103  U.  S.,  370. 


^rVERsiTT 


ADDENDUM.  387 


ADDENDUM. 


The  following  was  not  inserted  in  its  proper  connec- 
tion, and  is  here  appended: 

1.  Original  jurisdiction  of  the  Supreme  Court,  to  is- 
sue habeas  corpus. — The  Supreme  Court  may,  in  the 
exercise  of  original  jurisdiction,  issue  writs  of  habeas 
corpus,  in  cases  in  which  it  has  original  jurisdiction, 
such  as  cases  involving  ambassadors,  public  ministers, 
and  cases  where  a  State  is  a  party.  Ex  parte  Hung 
Hang,  108  U.  S.,  522 ;  Ex  parte  Parks,  93  XJ.  S.,  18 ; 
Ex  parte  Bollman,  4  Cranch,  75 ;  Burford's  Case,  3 
Cranch,  348 ;  Ex  parte  Siebold,  100  U.  S.,  371. 

2.  Appellate  jurisdiction  of  Supreme  Court  to  issue 
or  review  cases  of  habeas  corpus. — The  court  may  issue 
the  writ  of  habeas  corpus  in  cases  where  it  has  appel- 
late jurisdiction,  in  the  exercise  of  such  jurisdiction. 
Ex  parte  Siebold,  100  U.  S.,  371. 

(1)  While  ordinarily  the  Supreme  Court  will  not 
issue  its  writ  in  appellate  proceedings  to  review  the  pro- 
ceedings of  a  judge  at  chambers  (In  re  Metzger,  5  How., 
176),  it  will  do  so  when  the  proceedings  have  been  filed 
in  the  Circuit  Court.     Ex  parte  Lange,  18  Wall.,  103. 

(2)  And  where  the  prisoner  is  held  by  an  order  be- 
yond the  authority  of  an  inferior  Federal  court  and 


388  CONSTITUTION   OF   UNITED   STATES. 

outside  its  jurisdiction,  the  Supreme  Court  will  grant 
the  writ. 

(3)  Or,  when  it  appears  that  the  prisoner  is  held 
without  authority  of  law  though  by  the  judgment  of  a 
Federal  court,  the  Supreme  Court  will  issue  both  habeas 
corpus  and  certiorari  to  review  the  case  and  discharge 
the  prisoner.     Ex  parte  Lange,  18  Wall.,  163. 

(4)  Where  a  circuit  court  of  the  United  States  exer- 
cising original  jurisdiction  has  caused  a  prisoner  to  be 
brought  before  it,  and  after  inquiring  into  the  cause  of 
his  detention,  has  remanded  him  to  confinement,  the  Su- 
preme Court  may  issue  the  writ  and  also  certiorari  and 
reverse  the  decision  of  the  Circuit  Court  and  discharge 
the  prisoner,  if  illegally  confined.  Ex  parte  Yerger,  8 
Wall.,  85. 

(5)  Where  a  prisoner  is  held  for  disobedience  of  a 
writ  of  mandamus  the  inferior  Federal  court  had  no 
jurisdiction  to  issue,  the  Supreme  Court  will  release  on 
habeas  corpus.     Ex  parte  Kowland,  104  U.  S.,  604. 

(6)  So,  where  one  is  imprisoned  for  contempt  in  vio- 
lating an  illegal  order,  the  Supreme  Court  may  dis- 
charge on  habeas  corpus.  Ex  parte  Fisk,  113  U.  S., 
713. 

Appellate  jurisdiction  over  State  courts. — Where  a 
State  court  imprisons  a  man  in  a  case  where  it  is  al- 
leged the  State  court  had  not  jurisdiction,  as  for  ex- 
ample, in  the  case  of  violation  of  a  Federal  statute,  the 
Supreme  Court  will  not  send  its  writ  of  habeas  corpus 


ADDENDUM.  389 

where  no  reason  is  shown  why  the  case  can  not  be  re- 
viewed on  writ  of  error.  Ex  parte  Fonda,  117  U.  S., 
516. 

This  subject  is  fully  annotated  in  Gould  and  Tucker's 
iN'otes,  under  sections  751-765. 

Impairing  the  obligation  of  contracts. — The  Consti- 
tution of  Minnesota  reserves  to  the  legislature  the  power 
to  amend,  alter  or  repeal,  by  vote  of  the  people,  a  statute 
exempting  a  railroad  company  from  taxation,  upon  its 
paying  a  percentage  on  its  gross  earnings.  Held,  that 
this  could  not  be  so  exercised  as  to  repeal  the  exemption 
while  still  requiring  the  payment  of  the  percentage  on  its 
earnings.  This  was  impairing  the  obligation  of  a  con- 
tract between  the  State  and  the  corporation.  Stearns  v. 
Minnesota,  (Dec.  3,  1900). 

Keserved  power  to  alter,  amend,  or  repeal  a  contract 
with  a  corporation,  exempting  it  from  ordinary  taxes,  can 
not  be  exercised  in  such  manner  as  to  relieve  the  State 
from  the  provision  against  impairing  the  obligation  of 
contracts,  by  enactment  of  a  statute  which  takes  away 
the  obligations  of  the  State  and  retains  those  of  the  cor- 
poration, thus  depriving  the  corporation  of  the  consid- 
eration which  induced  it  to  assume  onerous  obligations 
to  the  State.  Duluth,  etc.,  R.  Co.  V.  St.  Louis  Co. 
(Minn.),  Dec.  10,  1900,  following  Stearns  v.  Minne- 
sota. 

The  statute  of  Michigan  (1885,  c.  112)  which  allows 
stockholders  of  a  corporation  to  cumulate  votes  on  can- 


390  CONSTITUTION^   OF   UNITED   STATES. 

didates  for  directors  does  not  impair  the  obligations  of 
the  contract  between  the  State  and  corporation  as  origi- 
nally organized.  Looker  v.  Majnard,  (Oct.  15,  1900). 
The  Constitution  of  Michigan  reserves  to  the  legislature 
the  power  to  alter,  amend  or  repeal  the  charters  of  cor- 
porations, which  is  the  controlling  fact  in  the  case. 

^^Equal  protection  of  the  laws/" — A  corporation  is  not 
denied  the  equal  protection  of  the  laws  relating  to  the  as- 
sessment of  property,  by  a  statute  relating  to  the  cor- 
rection of  under  valuation,  where  the  same  opportunity 
is  given  it,  that  is  given  to  other  persons,  to  correct  an 
undervaluation  of  the  property  of  individuals.  People 
V.Barber,  (Dec.  19,  1900). 

A  registration  law  applicable  only  to  cities  having  a 
certain,  or  to  exceed  a  certain,  population  does  not  deny 
to  citizens  residing  in  the  only  city  in  the  State,  having 
such  a  population,  the  equal  protection  of  the  laws. 
Mason  v.  Missouri,  (Dec.  10,  1900). 

A  manufacturer  engaged  in  the  business  of  refining 
sugar  is  not  denied  the  equal  protection  of  the  laws  be- 
cause he  is  required  to  pay  a  license  tax,  from  which 
planters  who  refine  the  product  of  their  own  plantations 
are  exempt.  American  Sugar  Refining  Co.  v.  Louisi- 
ana, (Is^v.  15,  1900). 

The  sale  of  cigarettes. — The  statute  of  Tennessee 
makes  it  a  misdemeanor  to  sell  or  offer  for  sale  in  the 
State,  or  bring  into  the  State  for  the  purpose  of  selling, 
giving  away  or  otherwise  disposing  of  cigarettes,  cigar- 


ADDENDUM.  391 

ette  paper  or  substitutes  for  the  same.  The  Supreme 
Court,  on  writ  of  error  to  review  a  judgment  of  the 
Supreme  Court  of  Tennessee,  held : 

1.  The  State  can  prohibit  the  sale  of  cigarettes  in  the 
exercise  of  police  power,  provided  the  prohibition  does 
not  apply  to  original  packages  or  make  any  discrimina- 
tion against  cigarettes  brought  in  from  other  states. 

2.  Paper  packages  3  inches  in  length  by  1%  inches  in 
width,  without  any  shipping  address  on  such  packages, 
taken  from  the  factory  by  an  express  in  a  basket  in 
which  it  carries  them  and  from  which  it  empties  them 
on  the  counter  of  *the  consignor,  do  not  constitute  origi- 
nal packages  within  the  meaning  of  those  words  as  used 
in  the  interstate  commerce  decision.  If  there  is  an^ 
original  package  in  the  shipment  it  is  the  basket. 

3.  Tobacco  is  and  has  from  time  immemorial  been 
a  legitimate  article  of  commerce.  Austin  v.  Tennessee, 
(Nov.  19,  1900). 


392  COl^STITUTIOJS"    OF    UNITED    STATES. 


DECISIOITS    SIITCE    OCTOBEE,    1900,    ON    POINTS    OF 
CONSTITUTIONAL  LAW. 

Equal  protection  of  the  laws. — A  registration  law  ap- 
plicable only  to  cities  of  300,000  inhabitants  or  more, 
lield  valid  by  the  highest  court  of  the  State,  does  not 
deny  citizens  residing  therein  the  equal  protection  of 
the  laws.     Mason  v.  Missouri,  21  S.  C.  Reporter,  125. 

A  state  law  compelled  emigrant  agents,  engaged  in 
the  business  of  hiring  laborers  to  go  outside  of  the  State, 
to  pay  a  license  tax,  but  required  no  «such  tax  of  those 
engaged  in  hiring  laborers  within  the  State.  Held,  not 
to  deny  equal  protection  of  the  laws.  Williams  v.  Fears, 
21  S.  C.  Reporter,  128. 

Due  process  of  law. — Prosecution  by  information  in- 
stead of  indictment  for  crime,  authorized  by  the  State 
Constitution,  is  due  process  of  law.  Davis  v.  Burke,  21 
S.  C.  Reporter,  210. 

The  question  whether  a  convict  to  be  executed  under 
State  authority  shall  be  executed  by  the  sheriff,  or  the 
warden  of  the  penitentiary,  or  whether  he  escape  pun- 
ishment altogether,  involves  no  Federal  question  as  to 
due  process  of  law.     Id. 

Impairing  the  obligation  of  a  contract. — An  act  of  the 
legislature  of  Louisiana'  provided  for  the  refunding  of 
certain  debts  of  the  city  of  I^ew  Orleans,  and  authorized 
the  vote  of  bonds  for  that  purpose.     These  bonds  were 


ADDENDUM.  39*5 

to  be  paid  out  of  the  proceeds  of  a  one-per-cent.  ad 
valorem  tax.  This  was  held  not  to  impair  the  oblisra- 
tion  of  previously  issued  bonds  in  the  hands  of  creditors 
though  payable  from  the  same  tax. 

"Although  the  United  States  Supreme  Court  exercises 
an  independent  judgment  in  determining  whether  a 
State  law  impairs  contract  obligations,  yet  when  the 
contract  arises  from  a  State  statute,  the  Supreme  Court 
will,  for  the  sake  of  harmony  and  to  avoid  confusion, 
lean  towards  an  agreement  of  views  with  the  State 
courts,"  where  the  question  seems  balanced  with  doubt. 
Board  of  Liquidation,  etc.,  v.  Louisiana,  21  S.  C.  Re- 
porter, 263. 

Extradition  to  foreign  countries  of  persons  accused  of 
crime — Cuba  is,  under  present  conditions,  a  foreign  ter- 
ritory, within  the-  Act  of  Congress  providing  for  the 
extradition  of  persons  violating  foreign  laws  of  a  terri- 
tory under  occupation  or  control  of  the  United  States. 

The  fundamental  guaranties  of  life,  liberty  and  prop- 
erty embodied  in  the  Constitution  have  no  relation  to 
crimes  committed  outside  of  the  jurisdiction  of  the 
United  States  against  the  laws  of  a  foreign  country, 
l^eely  v.  Henkel,  21  S.  C.  Reporter,  302. 

The  court  takes  judicial  notice  that  Cuba  was  at  the 
date  of  the  Act  of  June  6,  1900  (providing  for  the  ex- 
tradition of  persons  charged  with  crimes  against  Cuba), 
and  still  is  occupied  by  the  United  States  and  under 


394'  CONSTITUTIOI^     OF    UNITED     STATES. 

their  control.  Such  control  and  occupancy  can  not  be 
deemed  unconstitutional  or  an  unauthorized  interfer- 
ence with  the  internal  affairs  of  a  friendly  power,  under 
the  circumstances  existing  in  Cuba.  It  is  not  compe- 
tent for  the  judiciary  to  make  any  declaration  as  to  the 
length  of  time  such  occupancy  can  continue,  as  that  is 
purely  a  political  question.     Neely  v.  Henkel,  id. 

Ex  post  facto  law. — A  State  statute  of  1887,  providing 
a  heavier  punishment  for  a  person  who  had  twice  been 
convicted  of  a  crime,  and  sentenced  and  convicted,  held 
not  ex  post  facto  where  he  had  twice  been  convicted  be- 
fore he  was  convicted  under  the  statute.  He  was  not 
punished  for  first  crimes  but  for  the  one  last  committed. 
McDonald  v.  Moss,  21  S.  C.  Keporter,  389. 

A  degree  annulling  the  charter  of  a  corporation  and 
enjoining  its  officers  from  acting  as  a  corporation  be- 
cause of  the  illegality  of  its  object  does  not  take  away 
iproperty  without  due  process  of  law.  ISTew  Orleans  De- 
benture Co.  V.  State  of  La.,  211  U.  S.  C.  Eep.,  384. 
lN'ote. — Marbury  v.  Madison,  1  Cranch,  137.  This 
case,  in  the  foregoing  annotation,  is  cited  only  to  the 
point  of  the  jurisdiction  of  the  Court,  as  that  was  the 
point  on  which  the  case  was  dismissed.  It  is  really  a 
most  important  exposition  of  the  Constitution.  The 
facts  are  these:  As  President  Adams'  term  was  about 
to  expire  he  appointed  Marbury,  with  others,  as  justice 
of  the  peace  of  the  District  of  Columbia,  and  the  senate 


ADDENDUM.  395 

confirmed  liim.  The  commission  was  made  out,  signed 
and  sealed  and  was  ready  for  delivery,  when  President 
Jefferson  assumed  the  ofSce  of  President.  He  decided 
that  the  appointment  was  not  complete  until  the  deliv- 
ery of  the  commission,  and  directed  Mr.  Madison,  his 
Secretary  of  State,  not  to  deliver  the  commission.  Mar- 
bury  applied  to  the  Supreme  Court  for  a  writ  of  man- 
damus to  compel  the  delivery.  In  an  opinion,  regarded 
as  one  of  the  ablest  Chief  Justice  Marshall  delivered,  he, 
with  the  concurrence  of  the  Court,  laid  down  the  follow- 
ing propositions : 

1.  Marbury's  appointment  was  complete  and  vested 
in  him  the  title  to  and  legal  right  to  exercise  the  ofiice. 

2.  That  mandamus  was  the  proper  remedy,  and  might 
issue  from  a  court  of  competent  jurisdiction  to  compel 
the  Secretary  of  State  to  deliver  the  commission.  This 
proposition  that  the  executive  and  ministerial  officers  of 
the  United  States  may  be  compelled  by  the  courts  to 
perform  any  plain,  specific,  legal  duty  has  been  accepted 
as  the  law  of  the  land. 

3.  That  the  President  is  by  the  Constitution  invested 
with  certain  important  political  powers  and  in  their  ex- 
ercise uses  his  own  discretion,  and  appoints  officers  to 
aid  him  who  acts  by  his  authority  and  conform  to  his 
orders,  and  their  acts  are  his  acts  and  not  examinable  by 
the  courts. 

4.  But  when  the  legislature  imposes  upon  these  of- 


396  co:n^stitutioi^   of  united   states. 

ficers  appointed  by  the  President  other  duties  on  which 
the  rights  of  individuals  are  dependent,  he  is  an  officer 
of  the  law,  amenable  to  the  law  for  his  conduct.  So 
far  as  the  heads  of  departments  are  the  political  or  con- 
fidential agents  of  the  President,  so  far  their  acts  are 
only  politically  and  not  judicially  examinable.  Where 
specific  duties  are  assigned  by  law,  on  which  individual 
rights  depend,  a  person  aggrieved  may  apply  to  the 
courts  for  a  remedy. 

5.  But  original  jurisdiction  to  grant  a  writ  of  manda- 
mus in  such  a  case  is  not  conferred  on  the  Supreme 

Court. 

6.  The  13th  section  of  the  Judiciary  Act  (1  Stats. 

at  Large,  81)  which  attempts  to  confer  on  the  Supreme 
Court  power  to  issue  writs  of  mandamus,  in  classes  of 
cases  of  original  jurisdiction,  is  imperative  and  void,  as 
it  contravenes  the  Constitution  the  Congress  can  not  en- 
large the  jurisdiction  of  the  court. 

7.  An  act  of  Congress  repugnant  to  the  Constitution 
is  void. 

As  the  Court  decided  against  its  jurisdiction  the  case 
was  dismissed,  but  the  principles  enunciated  have  ever 
since  been  regarded  as  sound  and  recognized  as  law  and 
repeatedly  followed.  See,  i^otes  of  Decisions  of  Su- 
preme Court. 


INDEX. 


Page. 

'Accounts  of  receipts  and  expenditures  to  be  Ijept  and  published  143 

Administration  of  estates  of  living,  not  due  process 365 

Admission  of  States  into  Union,  rights  of,  when  admitted....  266 

territorial  property  passes  to  state  on   268 

effect  of,  as  naturalizing  citizens 267 

'Admiralty  Jurisdiction  extends  to  navigable  lakes  and  rivers. .  91 

Aliens,  Congress  may  exclude  or  expel    99 

Federal  courts  have  jurisdiction   where,  are  parties 222 

domiciled  here  may  be  guilty  of  treason 242 

AmMssadors,   President   to    receive    220 

and  to  appoint 207 

Supreme  Court  jurisdiction  of  actions  by  and  against....  226 

Amendments  to  Constitution,  how  made   282 

first  ten,  not  applicable  to  States 292 

First  article  of,  and  decisions  thereon   292 

Second  article  of,  and  decisions 295 

Third  article,   and  decisions    296 

Fourth   article,   and   decisions    297 

Fifth  article,  and  decisions   299 

Sixth  article,   and  decisions 310 

Seventh  article,  and  decisions  312 

Eighth   article,   and  decisions    316 

Ninth  article,  and  decisions    S17 

Tenth  article,  and  decisions 318 

Eleventh  article,  and  decisions   321 

Twelfth  article,  and  decisions  207 

Thirteenth  article,  and  decisions    327 

Fourteenth   article,   and   decisions 330 

Fifteenth  article,  and  decisions 383 

Anti-trust  Act  does  not  apply  to  a  live  stools  association  named. .  83 

same    held    valid    84 

joint  traffic  combinations  illegal    85 

Appellate  Jurisdiction  of  Supreme  Court  over  Circuit  Court  of  ' 

Appeals   233 

over  State  Courts  on  Federal  questions 223-241 

Appointments,  President  to  make,  of  officers 217,  219 

and  commission  same  220 

Armies,  Congress  may  raise  and  support   118 

may  judge  of  size lis 

regulations  for 120 


398  INDEX. 

l?age. 

Sirms,  right  of  people  to  Leep  and  bear  295 

Arsenals,  power  of  Congress  over 124,  127 

Assessments.      (See  Taxation.) 

for  taxation,  methods  of,  when  "due  process  of  law" 3S0 

Attainder,  bills  of,  shall  not  be  passed 134 

defined  and  distinguished 134,  144 


Badl,  excessive,  not  to  be  required 31G 

Bank  of  United  States,  tax  on  circulation  of,  void 24 

power  of  Congress  to  establish 25 

Bank,  dissolution  of,  does  not  impair  contract 175 

trust  fund  of,  for  creditors,  can  not  be  diverted  to  State..  158 

Bank  Notes,  State  agreeing  to  receive  for  taxes,  etc.,  can  not  re- 
pudiate      148 

Bankruptcy,  Congress  may  pass  uniform  laws   100 

State  laws  when  void  or  valid   100 

suspended  when  act  of  Congress  in  force   lol 

foreign  discharge  in,  no  bar 100 

State  laws,  when  impair  obligation  of  contract 194 

Bills  of  Credit,  States  not  to  issue 144 

what  are,  and  are  not 144,  145 

Bonds  of  United  States  not  taxable  by  States 28 

nor  corporate   capital   composed  of 28 

tax  on   foreign-held,    void 157 

municipal,  a  contract  which  State  can  not  impair 156 

Borrowing  Money,  power  of  Congress  as  to 34 

beyond  State  interference 34 

may  exempt  bonds  from  State  taxation 35 

Bounty  on  salt  to  encourage  manufacture,  not  a  contract 182 

Bridges,  when  charter  of,  a  contract  and  other  bridge  can  not 

be   authorized   near   it 156 

exclusive     franchise     not    violated    by    chartering    railroad 

bridge 180 

Bridges  over  Navigable  Streams,  power  of  Congress  as  to 91-94 

power    of    states    over 91-96 


Contracts,  Impairing  Obligations  of.   States  not  to  pass  laws 

impairing    144 

Instances  of  such  impairment   147-174 

Dartmouth  College  case   147 

States  may  contract  to  release  taxing  power,  when 147-150 

reservation  in  charters  of  power  to  amend 149 

charters,  when  a  contract  147,  "150 

instances  where  laws  not  an  impairment 174-196 

charters  of  corporations  when  a  contract 150 


INDEX.  399 

^  Page. 

Contracts— Con  tinued. 

exemptions  from  taxation  when  a  contract.  147, 151,  15G,  157, 176 

by  States,  not  impairable   153 

mortgages,  contracts  in,  can  not  be  impaired 154 

•'valuation  laws"  fixing  prices  of  sales  on  execution,  impair  154 

fund  set  apart  to  pay  debts,  when  a  contract  right 155 

lauds  granted  University  can  not  be  divested,  when 155 

liability  of  stockholders,  when  part  of  contract 155 

toll  bridge,  when  protected  from  rival  bridge 15G 

municipal  bonds,  taxes  to  pay,  not  repealable 15G,  157 

charitable   institutions,   when   exemptions  from   taxation   a 

contract    156 

'  foreign-held  bonds  not  taxable,  when 157 

lien  of  creditor,  can  not  be  divested 157 

promissory  note,  statute  requiring  proof  that  taxes  on  note 
had  been  paid,  as  precedent  condition  to  recovery,  void  as 

to  notes  previously  given 158 

State  a  stockholder  in  bank,  when  can  not  be  preferred....  158 

municipal  corporation  must  levy  taxes  to  pay  debts......  158 

confederate  money,  contracts  to  pay  in,  valid,  can  not  be 

impaired 159 

redemption  from  mortgages,  can  not  be  created  by  law  as 

to  past   150 

franchise,  when  impaired  by  second  16C 

^•Virginia  Coupon  Cases"   160-169 

laws  impairing  contract  are  void   169 

laws  in  force  at  time  of  contract  are  part  of 169 

remedies,  how  far  may  be  altered   171,  172 

laws  before   State  admitted  into  Union   not  within   prohi- 
bition as  to   impairment    170 

nor  those  passed  before  Constitution  adopted 171 

State  Constitution  not  a  contract 171 

toll    on    passengers    on    Cumberland    road,    State    can    not 

Impose 173 

implied  contracts  can  not  be  impaired 174 

instances  where  State  lavrs  did  not  impair 174 

statute  validating  void  contract  did  not 174  — 

patent  of  land,  statute  may  still   regulate.! 175 

tax   on    bank   may   be   imposed,    when    charter   silent 175 

dissolution  of  bank  does  not   175 

bridge  over  Charles  river  did  not   , 175 

ferry   licenses,    when    do    not 176 

university  lands  not  exempt  after  sale 176 

bridge  chartered  may  be  condemned  for  public  use 177 

bank   can   not   be  prohibited   from   transferring  note 177 

may  sue  on  notes  payable  to  cashier,  etc 177 

may  be  allowed  to  sue  in  own  name 177 

condemnation  of  land,  delegation  of,  to  railroad  company 

repealable 177 

State  may  contract,  in  charter,  as  to  rate  of  taxation....  178 

consent  by  State  to  be  sued,  not  a  contract 179 


iOO  INDEX. 

Page. 
Contracts— Continued. 

county   vote  to  subscribe  for  stock  no   contract,   till   con- 
summated     ;  179 

toll  bridge  charter  no  contract,  when 180 

rival  charter,  not  impairment,  when    , 181 

law  in  force  when  contract  made  does  not  impair 181 

Pennsylvania  College  cases   182 

college  might  be  removed 182 

interest  on  judgments.   State  may  reduce 182 

county  seat  removal  impairs  no  contract 183^ 

"Granger   cases" — regulating  charges  of   common   carriers, 

no  impairment  of  contract 183 

same  rule  as  to  elevators 184 

and  to  set  oS.  of  debts  due  to  municipality 184 

and   act   excluding   from   professions    184 

divorce  laws  no  impairment 184,  192 

nor   compromises   of   municipal    debts 184 

contracts  ultra  vires  may  be  repudiated,  when 185 

and  those  not  giving  exclusive  right  to  supply  water,  etc..  185 

State   can  not   be  compelled   to   perform   contract 185 

land  may  be  withdrawn  from  sale,  after  application 181 

immunity  from  acts  done  in  war,  no  impairment  of  judg- 
ment    186 

removal  of  college,  when  no  impairment 186 

mandamus,  to  compel  payment  of  assessments,  etc.,  no  im- 
pairment    186 

nor  is  repeal  of  act  allowing  recommendatory  judgment  in 

claims    187 

nor  exemption  of  Masonic  hall  from  taxes 187 

town  has  no  vested  right  to  exemption  from  taxes 188 

dam  owners  may  be  required  to  put  in  fish  ways ,  188 

tax  on  railroad,  does  not  apply  to  exempted  lands,  when..  188 
charter    exemption    of    capital    stock    embraces    individual 

shares   188 

but  not  property  into  which  it  is  converted 189^ 

charter  exemption  of  stock  and  dividends  does  not  include 

granted   'ands    189 

exemption  till  road  completed  a  contract,  when 189 

admission  of  foreign  corporations,  to  do  business  in  State, 

no   contract    190 

State  bankrupt  laws,  when  do  not  impair  contract 194 

Capitation  taxes.     (See,  Direct  Taxes.)* 

how  laid,  and  what  are 140 

Captures,  Congress  may  regulate,  in  war 113,  114 

Carriages,  tax  en,  not  direct 24 

Carriers,  States  may  regulate  rates  of 352 

but   not   unreasonably    353 

Cars,  State  laws  may  forbid  stoves  in 344 

Certificate  of  Indebtedness  of  U.  S.  not  taxable  by  States 27 

Charles  River  Ferry  Case,   charter  to  rival   ferry,  not   impair- 
ment of  contract    175 

Charters,  when  a  contract,  which  State  can  not  impair 147,  150 

reserved  right  to  alter  or  amend 149,  159 


INDEX.  401 
> 

Page. 

Chinese,  laws  denjing  equal  protection,  void 337 

Deportation   Act,   valid    34» 

Exclusion  Act,   valid    99 

Cigarettes  J  States  may  forbid  or  license  sale  of 351 

Citizens,  privileges  and  immunities  of,  in  other  States 252 

defined,  and  instances  where  not  given 252 

Dred  Scott  decision  as  to 252 

who  are,  of  U.  S.,  14th  Amendment   330 

immunities  of,  can  not  be  abridged  by  States 330 

Citizenship,  who  are  citizens  of  United  States 330 

Fourteenth   amendment   as  to    330 

President  must  be  natural  born  citizen... 211 

Coinage,  power  of  Congress  over 101 

forbidden    to    States    144 

Colored  People,  slavery  of,  prohibited 327 

protected  by  14th  Amendment 334 

protected   by   15th   Amendment 388 

laws   discriminating   against,    void 334 

ComMnations  by  railroads  for  join  traffic,  illegal 85 

Comity,  States  may  fix  conditions  on  which  foreign  corporations 

may  do  business  in  States,  when  74 

Commander-in-Chief,  President  to  be,  of  army  and  navy 213 

powers   as    such    213 

Commerce.     (See,  Interstate  Commerce.) 

Congress    may    regulate 37 

what   is   meant  by    38; 

Includes  intercourse   39f 

and  navigation    39 

regulation  of,  defined  39 

case  of  Gibbons  v.  Ogden   3& 

extent  of  power  to  regulate  39 

States  can  not  exact  "head  money" 40,  47 

States  can  not  regulate,  when  Congress  has  not 41 

immigration,  controlled  by  Congress 43 

instrumentalities  used  in,  when  taxable  by  States 43 

Interstate,  by  sea.  Congress  may  regulate 43 

passengers  coming  Into  State  can  not  be  taxed  by  State. ...  47 

fees   for   vessels   arriving,   void 48 

survey  of  hatches,  void    48 

registration   of  vessels,   void    48 

original  packages  of  imported  goods,  States  can  not  tax..  49 

what  are  original  packages 49 

power  of  Congress,  how  far  exclusive 50,  51 

applies  to  new  instrumentalities  such  as  telegraphs,  etc. .  51 

how  far  States  may  tax  property  used  in  interstate.. 51 

oleomargarine  laws  of  States,  when  void 81 

same,  when  valid   81 

anti-trust  act  of  Congress  valid 83 

to  what  applies    83 

joint  traffic  combinations  illegal 85 

with  Indian  tribes.  Congress  regulates 06 

26 


J 


402  INDEX. 

Page. 
Commercial  Agents,  of  interstate  commerce,  States  can  not  dis- 
criminate against   45 

Commercial  intercourse.  Congress  may  regulate,  in  war 114 

Commissions,  President  to  issue,  to  officers   220 

Common  law,  U.  S,  courts  liave  no,  jurisdiction 310 

suits  at,  inciude  wliat 312 

facts   tried   by   jury   re-examined   only   according   to  ^  rules 

of 312-313 

Compensation,  of  senators  and  representatives 19 

not  cut  off  by  payment  to  unseated  member 19 

Condemnation.      (See,   Eminent  Domain.) 

Confederate   money,   contracts   to    pay    in,    when    and   how   en- 
forcible  158 

Confiscation,  power  of,  in  war 113,  115,  116 

Confiscation  Acts,  not  contrary  to  5th  and  6th  Amendments..  307 

Congress,  vested   with   legislative  power    8 

of  w^hat  consists   8 

when  to  meet   16 

President  may  call  extra  session    220 

Consolidation,  fee  for  filing  articles,  do  not  interfere  with  com- 
merce      71 

Constitution,  laws  and  treaties,  supreme  law  of  land 283 

State,  not  a  contract  171 

Contempt,  commitment  for,  due  process  of  law 373 

jury  trial  not  demandable  in 366 

Contracts.      (See,  Impairing  Contracts.) 

by  States,  they  can  not  impair 153 

Contracts,  ultra  vires,  not  impaired  by  later  laws 185 

Copyright,  power  of  Congress  as  to 107 

is  plenary  and  exclusive   107 

Corporations,  not  citizens  of   State 200 

charters    of,    when    contracts,    which    States    can    not    im- 
pair     147-155 

States  may  exclude  foreign 348 

or  fix  terms  of  admission  to  do  business 348 

tax  of  property  of,  on  propoi'tional  basis 350 

States  may  fix  liability  of 352 

Counsel,  accused  may  have,  for  defense 310 

Counterfeiting,  Congress  may  provide  punishment  for 102 

and  of  foreign  coin  or  securities    103 

power  not  exclusive 103 

law  of  nations  in  respect  to 112 

States  may  also   punish 309 

County  may  be  sued  in  Federal  court 321 

County  seat,  removal  of,  no  impairment  of  a  contract 183 

Coupons.     (See,  "Virginia  Coupon  Cases.) 160 

Courts.      (See,    Supreme    Court,     Federal     Courts,     Territorial 
Courts,  Judicial  Power.) 

power  of  Congress  to  establish  Inferior 110 

Court  procedure,  in  States,  when  due  process  of  law 368 

Creditors,  rights  of,  when  impaired  by  State  laws 155 

State  laws  denying  equal  protection  to,  void 339 

Crimes,  may  be  both  against  Federal  and  State  laws 301 


INDEX.  403 


D. 

Page. 

Dams,  over  navigable  streams,  when  States  may  authorize 91 

Dartmouth  Colleye  Case,  State  can  not  impair  contract  obligation 

of   charter,    when    147,  150 

Debts  of  United  States,  not  to  be  questioned   332 

Congress  has  power  to  pay 24 

those  contracted  before  Constitution,  valid 283 

States  can  not  make  anything  but  gold  and  silver  coin  a 

tender  for    144 

of  Confederate  States,  never  to  be  assumed  or  paid 332 

Defense,  Congress  may  provide  for  common,  and  pay  debts  for. .  24 

Direct  taxes,  how  laid,  what  are,  etc 10,  21,  141 

Income  tax  unconstitutional    11,  141 

taxes  on   real   property   are 11 

and  on  incomes  therefrom 12 

succession  tax  not  a   12 

Diplomatic  Appointments,  President  to  make 217 

Disabilities  for  part  in  Civil  War 331 

Disfranchisement  by  educational  disqualification  may  be  made. .  360 

Disorderly  behavior,  each  house  may  punish  or  expel  for 17 

Distiller's  output,  Congress   may  tax 30 

Distress   for   internal   taxes,    allowable 29 

against   revenue   officers   when    allowed 298 

to  collect  income  tax  lawful 298 

District  of  Columbia,  power  of  Congress  over 125 

is  not  a  "State" 125 

may  impose  direct  tax  in 125 

and  apportion  tax  125 

may  cede  part  back  to  State 126 

Divorce,  laws  for,  impair  no  contract 184,  192 

Dockyards,  Congress  has  authority  over  125 

Domestic  Insurrection,  Congress  may  call  out  militia 121 

may  decide  which  is  State  government   122 

Drainage,  when,  by  due  process  of  law 375 

"Drummers"  of  other  States,  State  can  not  tax  unequally 45 

Due  Process  of  Law,  definition  of 303,  361 

in  levying  taxes   361 

instances  of  depriving,  without   362 

administration  of  estates  of  living  person,  not 365 

proceedings  in  courts,  when 365 

Duties,  Congress  has  power  to  lay 24 

shall  be  uniform  throughout  the  United  States 24 

shall  not  be  laid  on  exports 141 

no  State  shall  impose  on  imports  or  exports 196 

net  produce  of  duties  for  inspection,  to  inure  to  U.  S 196 

vessels  not  to  pay,  in  States 142 


404  INDEX. 


E. 

Page, 

Election  of  President  and  Vice  President,  by  electors 207 

Election  of  Representatives,  power  of  Congres  over 15,  16 

Election  of  Senators^  State  legislatures  may  prescribe  time,  place 

and  manner 15 

but  Congress  may  make  or  alter  regulations 10 

Electors.      ( See,  Presidential  Electors.) 206 

Elevators,  States  may  regulate  charges 72 

contracts   for,   not   interference   with    interstate   commerce, 

when 47 

nor  "no  preference"  clause 143> 

Eminent  Domain,  private  property  not  to  be  taken  for  public  use, 

without  compensation   29{> 

when  such  taking  is  by  due  process  of  law 306 

prohibiting  sale  of  liquor,  not 306 

laws  permitting,  when  repealable 177,  179 

Employes,  liability  of  corporations  for,  within  State  control....  345 

States  may  require  payment  to,  on  discharge 347 

Engineers,  States  may  require  locomotive,  to  be   licensed 345 

Equal  Protection  secured  by  Constitution,  14th  Amendment....  333 

cases  where  denied  by  States 337 

by  denying  carriers  a  reasonable  profit 338 

police  regulations  not  denying 339,  342 

Escheat,  when  to  State,  Is  by  "due  process" 372 

Excises,  Congress  can  lay 24 

such  taxes  not  affected  by  State  prohibitory  laws 32 

nor  hostile  to  same 32 

Executive  Power  vested  in  President 206 

independent  of  other  departments  209 

can  not  forbid  execution  of  laws 209 

to  choose  between  several  State  governments 209 

to  protect  judges  of  U.  S.  courts 210 

may   establish   provisional   governments   in   newly   acquired 

territory,  when    219 

and  provisional  courts  in  insurgent  territory 210 

Exclusive  Franchise,  when  not  impaired  by  chartering  rival  line.  178 

when  not  granted,  others  may  be 189 

Exemption    from    taxation.     State    may    bind    itself    by    con- 
tract  147,  155,  156 

of  railroad  property.  Includes  what 169 

of  stock,  includes  shares 189 

but  not  property  of  corporation 189 

nor   land   granted    ^ 189 

when  not  a  contract    147,  155,  187 

Exports,  from  States,  no  tax  to  be  laid  on 141 

stamp  taxes  on  tobacco  not  a  tax  on 141 

excise  taxes,  not  a  tax  on 141 

tax  on  withdrawal  of  spirits  from  bonded  warehouses,  not 

a  tax  on 142 

from  States,  not  to  be  taxed 141 

decisions  as  to  141,  142 


INDEX.  405 

rage. 

Ex  post  facto  laws.  Congress  shall  not  pass 134 

what  are  and  are  not 134,  131) 

States  shall  not  pass,  instances  of,  and  decisions  on 146 

Extra  Session,  President  may  convene  Congress  in 220 

Extradition  of  fugitives  from  justice 264 

under  foreign  treaties   265 

F. 

Faith  and  Credit,  full,  to  be  given  in  each  State  to  acts,  records, 

etc.,  of  other  States 243 

when  to  be  given 243 

instances,  where  not  given    243-252 

instances,  where  given    243-252 

Felony,  members  not  privileged  from  arrest  for 20 

on    high   sea.    Congress   may   punish Ill 

accusation  for,  must  be  by  indictment 299 

^'Federal  Questions,"  what  are,  arising  in   State  courts 233 

Fences,  State  may  require  railroads  to  build 71,  345 

Ferry,  across  navigable  streams,  State  regulation  of 95 

when  franchise  not  a  contract 175,  176 

Fifteenth  Amendment,  text  of,  to  Constitution 383 

decisions   under    383 

Fines,  excessive,  not  to  be  imposed 316 

Fish  and  Oame,  States  may  regulate  killing  and  shipment  of.  .  .77,  346 

Flotcing  lands,  laws  for,  constitutional,  when 307 

Foreign  Coin,  Congress  may  regulate  value 101 

and  punish  counterfeiting  of 103 

Forfeiture,  treason  not  to  worls,  except  for  life  of  attainted....  241 

Forts,  power  of  Congress  over 124,  126 

Fourteenth  Amendment,  text  of,  to  Constitution 330 

decisions  under 332-382 

operative  against  States  only 333 

instances  of  laws  discriminating  against  colored  persons...  334 

where  laws  have  denied  equal  protection 337 

discriminated  against  non-residents 337 

limited  carriers  rates  unreasonably , 333 

where  regulation  of  carriers  does  not  violate 339 

what  States  may  require  of  carriers 340 

may  fix  maximum  rates  in  State 340 

power  of  States  over  rates 341 

police  power  of   States  not  affected  by 342 

instances  of  constitutional  police  power 342 

instances  of  proper  local  taxation 354 

what  is  due  process  of  law  under 361 

instances   of   unconstitutional    acts 362 

depriving  of  property  without  due  process 362 

Instances  where  "due  process  of  law"  was  found 365 

court  procedure,  when  due  process 368 

eminent  domain,  when  due  process 374 

taxation   when   and   when  not   "due  process" 379 

operates  retrospectively 360 


406  I]ST>EX. 


Page. 

FrancMses,  granted  by  Congress,  when  taxable  by  States 30 

States  may  tax,  bow  and  when •      51 

State  taxes  on,  valid   355 

when  a  vested  contract  right .147,  159 

exclusive,  when  a  contract  169 

Foreign  Corporations,  admission  to  do  business  In  a  State,  not 

a  contract   190 

States    may    exclude    348 

Foreign-held  bonds.  States  can  not  tax,  when 30,  157 

Congress  may  tax   30 

Form  of  Oovernment,  republican,  guaranteed  to  States 274 

Formation  of  New  States,  admission  of,  into  Union.. 266 

Freight,   tax   upon,   an   Interference   with   Interstate   commerce, 

when 58 

regulation  of  charges  for,  by  States,  void,  as  to  interstate. .    59,  66 

States  may  regulate  charges,  when 183,  352 

but  not  unreasonably 338,  353 

Fugitives   from  Justice,  to  be  delivered   up,  when 264 

Fugitive  Slaves,  former  provisions  as  to 261 

decisions  upon 261 


G. 

Game  and  Fish,  States  may  regulate  killing  and  shipment  of.. 77,  346 

Gas,  States  may  regulate  waste  of  natural 351 

General  welfare.  Constitution  established  for 1 

Congress  may  provide  for 24 

Gibbons  v.  Ogden,  9  Wheat.,   189,  leading  case  as  to  power  of 

Congress  over  navigation,  etc 38 

Gold  and  Silver,  State  can  make  nothing  else  a  tender 144 

Government,  republican  form  guaranteed  to  States 279 

Grand  jury.  Indictment  by,  for  capital  or  Infamous  crimes 299 

States  can  not  disqualify  for  color 324,  330 

"Granger  Cases/'  States  may  regulate  freight  charges  of  common 

carriers 183 

Grant  of  lands,  by   State  can   not  be   Impaired 154,  155 

"Greenbacks"  States  can  not  tax 27 

Gross  earnings  of  interstate  railways,  taxation  by  State 52 

Gross  receipts  of  Interstate  carriers,  when  taxable  by  States..  56,  65 

when  not  so  taxable  56 

Guarantees  to  States  of  republican  form  of  government 279 

President  may  determine  which  Is  government  of  State 279 

Luther  v.   Borden   Case 279 

Kentucky  Election  Case ,.  281 


H. 

"Habeas  Corpus,  not  to  be  suspended,  when ^  IS.'l 

Supreme  Court  can  not  review  on 311 

jurisdiction  of  Supreme  Court  in    387 


INDEX.  40Y 

Page. 

Harhor  Lines,  States  may  locate 344 

Hiyhicays,  cities  may  protect   344 

assessments  for  improvements,  when  constitutional 381 

High  Crimes  and  Misdemeanors,  President  and  civil  officers  im- 
peachable for 221 

"High  Seas,"  Congress  may  punish  piracy  and  felony  on Ill 

what  are   112 

House  of  Representatives,  how  composed 8 

qualifications  of  members   8 

who  may  be  representatives   8 

how  apportioned  among  States   9 

what  number  to  compose 10 

vacancies,  how  filled 10 

to  choose  Speaker  and  officers 10 

has  power  of  impeachment  14 

judge  of  elections,  etc.,  of  members 17 

majority  a  quorum 17 

may  determine  rules  of  proceeding  17 

may  punish  or  expel  members  for  disorderly  behavior,  etc...  17 

shall  keep  a  journal  19 

not  to  adjourn  more  than  three  days  without  Senate's  con- 
sent      19 

privilege  of  members   20 

for  speech  or  debate 20 

disabilities  of  members 21 

from  rebellion,  how  removed.. 331 

revenue  bills  to  originate  In  21 

may  punish  for  contempt 17 

and  pass  laws  to  compel  attendance  of  witnesses 17 

may  count  those  present  not  voting  in  quorum 18 

Houses  of  III  Fame,  States  may  fix  limits  for 351 


I. 

Immigration.      (See,  Head  Money.) 

State  can   not  tax   incoming   passengers 47 

Immunities    (See,    Privileges   and    Immunities) 252 

Impairment  of  Contract  by  State,  laws,  instances  of 147-174 

instances  where  laws  not  an 174-196 

by  statutes  of  limitations 193 

Impeachment,   President,   etc.,    liable  to    221 

Implied  Contract  may  be  impaired  by  State  laws 174 

Imports,  States  can  not  lay  duty  on,  except,  etc 196 

what   are    197 

Imposts.      (See,  Commerce.) 

Congress  may  lay  taxes  on.  etc 24 

to  be  uniform  throughout  U.  S 24 

may   distrain   to   collect    29 

decisions  as  to   24 


408 


INDEX. 


Page. 

Incidental  Poicers  of  Congress    128 

decisions  as  to,  and  defining   128 

pertaining  to  sovereignty    131 

Indians,  commerce  with  tribes,  Congress  regulates 96 

not  counted,  for  representation    10,  331 

when  not  citizens   332 

sale  of  liquor  to.  Congress  may  forbid 97 

Indictment  for  capital  or  infamous  crime    299 

not    amendable    300 

form  of,  in  state  court  not  reviewable 311 

Infamous  Crime  triable  only  on  indictment   299 

Inferior   Courts,   Congress   may   establish 221 

appellate  Jurisdiction  over    231 

Information  not  sufficient  to  try  on,  for  infamous  crime 300 

Inheritance  Tax  by  States,  he'd  valid   356 

Injunctions,  Federal  courts  may  enjoin  interference  with  Inter- 
state   commerce    86 

Insolvent  Laws  of  States,  when  impair  obligation  of  contract..  194 

Inspection  Latcs,  when   void   or,   valid 78 

of  tobacco,  valid   79 

of  fertilizers,   valid    79 

of  meats,   void   when   discriminative    79 

Insurance  not  commerce ;  States  may  regulate   78 

Interstate  Commerce,  State  can  not  tax 44 

nor  Interfere  with,  by  license  taxes   44 

as  to  express  companies 46 

as   to   occupations    46 

as  to  factors  or  brokers   47 

how  far  States  may  tax  property  used  in   51 

may   tax   gross    earnings,    when 52 

and   when   not    56,  65 

or  proportion  of  same   52 

or  proportional  value  of  franchise    52,  63 

or  proportional  value  of  capital  stock 53 

or   of   franchise    54 

or  miles  of  wires  in  State 54 

or  business  done  solely  in  State   54 

or  corporate  franchises   54 

of  foreign  corporations   55 

or  terms  may  be  Imposed  on   same 74 

can  not  tax  passengers,  or  company  for  carrying  into,  out 

of,  or  through  State 57,  59 

nor  regulate  long  and  short  hauls  as  to 57 

nor  tax  sleeping  cars,  when   58 

nor  freight  passing  through 58,  59 

nor  telegraph  companies   60 

Intoxicating  liquors,  state  may  regulate  sale  of,  In  state..  33 

67,  69,  342 

original  package  cases  as  to   70 

States  or  cities  may  charge  wharfage 71 

and  regulate  Import,  pilotage 71 

and  compel  railroads  to  fence  track : 71 


INDEX.  409 

Page. 
Interstate  Commerce— Continued. 

and  charge  fees  for  filing  consolidation  articles 71 

and  regulate  elevator  charges    72 

and  running  trains  on  Sunday 73 

but  can  not  require  stopping  at  all  stations 73 

may  regulate  speed  in  cities 74 

may  impose  conditions  on  foreign  corporations 74 

and  liability  for  negligence , 75 

and  liability  for  injuries  and  contracts  of  exemption 

therefrom 75 

may  charge  rate  of  taxation 76 

and  regulate  fares  in  State 76 

may  charge  for  examination  of  paupers,  idiots,  etc.,  com- 
ing in,  when 76 

may  require  locomotive  engineers  to  be  examined  and  li- 
censed   77 

may  regulate  killing  of  game >  77 

or  fish  caught 78,  346 

may  regulate  insurance  .  = 78 

State  inspection  laws,  when  void   78 

as  to  meats  when  restrictive  of  interstate' commerce ... .  79 

as  to  tobacco,  held  valid    79 

as  to  fertilizers,  valid  when 79 

quarantine  laws,  when  valid    80 

oleomargarine   laws   by   States,   when  void 81 

shipment  from  point  to  point  in  same  State,  not  interstate  58 

oleomargarine  laws,  when  void   81 

Congress  may  tax ^ 82 

anti-trust   act,   valid    84 

to   what   applies    83 

monopolies,  sugar  refineries,  not 84 

joint  traffic  combinations  illegal 85 

Federal  courts  may  enjoin  interference  with,  Debs'  case..  86 

internal   navigation,   Congress   controls,   when a  86 

State  power  as  to    88 

iiens,   maritime.  Congress  may  provide    90 

marine  torts  on  rivers.  State  power  over   90 

bridges  over  navigable  rivers,  power  of  Congress  over — .  91 

ferries  over  navigable  rivers,  how  far  States  may  regulate.  95 

Interest  in  judgments,   law  may  change   182 

Intoxicating  Liquors,  States  may  regulate   33,  67,  342 

original  packages,  case  as  to 70 

sale  of,   in  Indian  country    97 

prohibiting  sale  of,  not  taking  for  public  use 306 

insurrtiction,   Congress   may   provide   for  calling  out   militia  to 

suppress '.  121 

disability  for  engaging  in    331 

Invasion,  States  to  be  protected  from   121,  279 

Inventors.      (See,  Patent  Right.) 

may  be  secured,  exclusive  rights 107 

decisions  as  to    107,  109 

Irrigation,  a  public  purpose,  property  may  be  taken  for 850 


410  INDPX. 


J. 

Page. 

Jeopardy,  no  one  to  be  put  twice  In,  of  punishment 29& 

what  is,  and  is  not,  twice  in 309 

Joint  Traffic  Comhitiations  of  railway  companies,  held  illegal..         85 

Journal  of  Proceedings,  each  house  of  Congress  to  keep 19 

objections  of  President  to  be  entered  on 22 

TOte  of  members  to  be  entered  on   2S 

Judges  in  every  State,  bound  by  Constitution 283 

of  Supreme  and  other  courts  to  hold  during  good  behavior.       221 
compensation   of,    provided   for 221 

Judicial  Power,  vested  in  Supreme  and  Inferior  courts 221 

to  what  cases  extends    222 

decisions  as  to    223-241 

limited  as  to  suits  against  States 321 

Judgments,  full  faith  and  credit  In,  of  States  to  be  given  In 

other   States    243 

to  what  judgments  rule  applies  243 

decisions  as  to 243-252 

who  is  concluded  by   367 

State  may  change  rate  of  Interest  on   182,    343 

against   municipality,   how  enforced 157,  158 

in  case  of  impeachment,  extent  of 14 

Judgment  Creditor,  right  of,  to  seize  property  of  wife  of  debtor, 

not  a  contract  right   191 

Jurisdiction,  of  Supreme  court,  see  Supreme  Court 223 

slavery  prohibited  within,  of  U.  S 327 

In  case  of  judgment  of  other  State,  may  be  disputed,  when       243 

decisions  as  to    243-246 

new  States  not  to  be  carved  out  of  old,  without  consent..       266 

Federal  courts  have  no  common  law 310 

when  not  conferred  by  due  process  of  law 364 

Jurors,  States  can  not  disqualify,  for  color 329,  330 

Jurp  Trial  in  criminal  cases  secured   299,  301,  310 

Just  Compensation,  private  property  not  taken  for  public  use 

without     299 

decisions  as  to  such  taking 308 

as  to  whether  proceedings  are  due  process  of  law 374 


K. 

Keniuc'kp  Election  Case,  Supreme  court  can  not  review  State 

election     281 


L. 

Labor,  fugitives  from  service  are  to  be  delivered  np 261 

State  may  fix  hours  of    349 

Laches,  when  waiver  of  claim  that  State  law  impairs  contract.  173 

same  not   "Federal    question" 173 


iisrDEX.  41 1 


Page. 

Land  and  Naval  Forces,  Congress  to  make  regulations  for....  120 

Law  and  Fact,  Supreme  court  has  appellate  jurisdiction  as  to.  222 

Law  of  the  Land,  Constitution,  laws  and  treaties  are,  supreme   .  283 

*'Law  of  Nations/'  Congress  may  punish  offenses  against 112 

Legal  Tender,  States  can  make  gold  or  silver   only 144 

Congress  can  make  U.   S.  treasury  notes 36 

Letters  can  not  be  seized  in  mails   297 

nor  seized  for  use  as  evidence 305 

Letters  of  Marque  and  Reprisal,  when  may  be  issued 113,  116 

States  can  not  issue   144 

Levees  on  Rivers,  taking  land  for,  without  compensation  valid  in 

Louisiana   375 

License  Fees,  States  may  exact,  for  doing  business  in 351 

License  Tax  to  sell  liquors,  does  not  override  State  prohibition 

laws    32 

by   states,   void   when   restrictive   of   interstate   or   foreign 

commerce    44 

Lien  of  judgment.  States  can  not  divest,  when 157 

Liens,  maritime,  Congress  may  provide  for 90 

Life,  Liberty  and  Property,  not  to  be  deprived  of,  but  by  due 

process  of  law    330 

Life  and  Limb,  not  to  put  twice  in  jeopardy 299 

Liquors.      (See,   Intoxicating  Liquors.) 

Liquor  Laws  of  States  not  affected  by  Internal  revenue  tax....  32 

Luther  v.  Borden  Case,  insurrection  in  Rhode  Island 279 


M. 


Magazines,  Congress  exclusive  power  over   124,  126 

Mails,  Congress  may  shut  out  matter  from 105 

courts  may  enjoin  interference  with   106 

and  punish  disobedience  as  a  contempt 106 

letters  can  not  be  seized  in    297 

Majority  of  each  house  a  quorum 17 

of  States  necessary  for  choice  of  President  by  House  of  Rep- 
resentatives      208 

of  Senators  to  choose  Vice-President,  when 208 

Maritime  Jurisdiction,  judicial  power  of  Federal  Courts  extends.  222 

Marine  Torts,  States  may  declare  liability  for,  when 90 

Markets,  cities  may  limit  location  of   343 

Marriage,  divorce  laws  not  impairment  of  contract   184 

Marque  and  Reprisal,  Congress  may  grant  letters  of 113,  116 

States  not  to  issue  letters  of   144 

Meeting  of  Congress,  when  to  be 16 

Measures,  Congress  to  fix  standard  of  weights  and 101 

Members  of  Congress.     (See,  Represntatives.) 

Message,  President  to  inform  Congress  as  to  state  of  Union ....  220 

Militia,     Congress  may  provide  for  calling  out 121 

power  defined    ,. 121 


412  INDEX. 

Page. 
Militfa-Contlnued. 

for  arming  and  disciplining  same » 122 

necessary  for  security   295 

President  commands,  when  called  into  service 213 

military  Courts  may  be  established  in  war 115 

Military  Governors  may  be  appointed  in  war 115 

Misdemeanors,   President   and   civil   oflBcers   may   be   impeached 

for    221 

Mohs,  States  may  repeal  laws,  allowing  damages  for  injuries  by  349 

Money  to  be  drawn  from  treasury  on  appropriation  only 143 

Congress  may  borrow    34 

may  coin  and  regulate  value  of   101 

for  supporting  army,  only  for  two  years    118 

Mormons,  decisions  as   to    293 

Congress  may  prohibit  polygamy 294 

Mortgages,  State  can  not  add  to  time  of  i*edemption,  as  to  pro- 
visions    159 

State  laws  can  not  Impair  obligation  of 154 

States  may  tax  mortgagee's  interest  in  land 355 

Municipal  Charters  not  contracts  with  State 185 

Municipal  Corporation,  contract  for  water  supply  of,  from  one 
source  not  impaired  by  contract  to  supply  from  another 

-    source   185 


N. 

Nations,  Congress  may  provide  for  punishing  offenses  against 

laws  of Ill 

may  regulate  commerce  with  foreign    37 

National  Banks,  how  taxable  by   States 31,  35 

Natural-born  Citizen  only  eligible  as  President,  etc 211 

Naturalization,  power  of  Congress  as  to   98 

exclusive  power  of  Congress    98 

admission  of  State  naturalizes  citizens  of,  when 99 

Congress  may  exclude  or  expel  aliens   99 

who  are  citizens  of  U.  S 330 

Naval  Forces,  Congress  may  make  rules  for,  etc 120 

Navigation,  Congress  may  regulate  interstate 86-88 

State  power  as  to  internal   88 

Navy,  Congress  may  provide  and  maintain 119 

powers  defined  as  to 119 

and  punish  offenses  In * 119 

and  desertion  from    119 

Secretary  of,  may  prescribe  regulations  for,  with  approval 

of  President 120 

Negligence,  State  may  regulate  liability  for.  In  Interstate  com- 
merce, when   75 

New  States  may  be  admitted  into  Union    266 

rights  of,  when  admitted 266 

decisions  as  to  same  266-269 


INDEX.  413 

Page. 

NoUlitu,  title  of,  by  Congress,  forbidden I  144 

by  States  forbidden   144 

Nominationsj  by  President  to  oflBce,  how  made 217 

O. 

Oath  of  Office,  President  to  take 212 

to  support   Constitution,   all   officers,   etc.,   to  take   and   be 

bound  by 283 

Otjections,  President  vetoing  bill  to  return,  with  same 22 

Obligation  of  Contracts,  States  not  to  impair 144 

decisions  upon  clause   147-196 

Offense  against  law  of  nations.  Congress  may  provide  for  punish- 
ment      Ill 

Office.      (See,  various  heads.) 

member  of  Congress  can  not  hold  other 21 

disqualification  for,  by  rebellion 33 

appointment  to,  not  a  contract   178 

appointment  to,  in  recess  of  Senate 219 

vacancies  of,  in  recess  of  Senate 219 

Officers  of  U.  S.,  President  to  nominate 217 

of    U.    S.    can    not    accept    title    or    present    from    foreign 

prince    144 

Oleomargarine,  State  laws,  when  interfere  with  commerce 81 

may  prevent  deception 82 

Federal  tax  on,  valid 82 

State  laws  do  not  apply  to  National  Homes 82 

when  and  how  State  may  regulate   347 

Opinion,  President  may  require,  of  heads  of  departments 213 

Original  Jurisdiction   of    Supreme   court 222 

Original  Packages  of  imported  goods,  not  taxable  by  States  till 

broken  or  sold  by  importer   48 

what  are 49 

of  liquors  sent  into  State 70 

Overt  Act,  in  treason,  must  be  proved  by  two  witnesses 241 

P. 

Pardon,  power  of  President  to  grant 213 

decisions  as  to    215 

Passengers,  tax  on  stage  companies  for,  when  void 57 

inspection  of,  when  an  interference   77 

toll    upon,   over   Cumberland   road,   violates   contract   with 

U.  S 173 

Patents,  power  of  Congress  as  to 107 

is    plenary    and    exclusive    107 

Post  Offices  and  Post  Roads,  Congress  may  establish 103 

extent  of,  defined    104 

reaches  to  new  instrumentalities    105 

may  shut  out  matter  from  mails   105 

and  punish  depredations  on   104 

may  prevent  interference  with    106 

courts  may  enjoin  same 106 

and  punish  disobedience  as  a  contempt  106 


414  INDEX. 

Page. 
Powers,'  not  delegated  to  United  States  reserved  to  the  people 

of  States 318 

illustrative  decisions 318 

enumerated,  not  to  disparage- others  not  mentioned 317 

Peace,  in  time  of.  States  not  to  keep  troops  or  ships  of  war..  201 

soldiers  not  to  be  quartered  in  houses 296 

Pensions  and  Bounty,  debt  for,  not  to  be  questioned 332 

People,  Constitution  ordained  by    1 

rights  of,  to  petition,  etc 292 

to  bear  arms 295 

secure  from  searches  and  seizures. 297 

powers  not  delegated,  reserved  to 317,  318 

Pilots  and  Pilotage,  how  far  States  may  regulate 33 

Piracy,  Congress  may  define  and  punish Ill 

decisions  under  clause Ill 

Police  Regulations,  States  may  prescribe,  when 74,  342 

Ports,  not  to  be  preferred    142 

what  regulations  local  authorities  may  make 142 

Practitioners  may  be  required  to  pay  license  tax   343 

Preamble,  object  of  the  Union    1 

nature  of  the  Union 2 

Constitution  emanated  from  people    1 

United    States   one   nation    4 

Preference,  not  to  be  given  to  ports 142 

President  vested  with  executive  power 206 

who  eligible  to  office 211 

Vice  President,  when  act  as    212 

compensation  of,  not  to  be  changed 212 

oath  of  office 212 

to  be  Commander-in-Chief 213 

powers  as  such   213 

pardoning  power  of 215 

extent  and  effect  of 215 

may  make  treaties  with  consent  of  Senate 217 

appointing  power  of 207 

may  fill  vacancies,  when 219 

to  give   information   to   Congress    220 

to  commission  officers 220 

removable  by  impeachment 221 

Presidential  Electors,  how  chosen   206,  209 

States  direct  manner  of  election    207 

can  not  change  time  of  meeting 207 

when  meet  and  how  proceed 207 

Private  Papers  can  not  be  seized  to  be  used  as  evidence 305 

nor  taken  from  mails 297 

Privateering,  Congress  may  authorize,  when 116 

Privileges  and  Immunities  of  citizens  of  State,  entitled  to,   in 

each   State    252 

decisions   under   clause    252-260 

corporations  not  citizens 200 

not  denied  by  State  Constitution  requiring  voter  to  be  able 

to  read  and  write 360 


INDEX.  415 


Page. 

Prizes  Captured  in  War,  Congress  may  make  rules  as  to 113 

Process  of  Law.      (See,  Due  Pi'ocess  of  Law.) 

Proclamation  of  President,  when  takes  effect .,  214 

effect  of,  as  pardon  and  amnesty 215 

Professions,  exclusion  from,  not  impairment  of  contract . . . .  c .  184 
Prohibitions  on  States,  States  not  to  lay  duties  on  imports  or 

exports,  except  for  inspection 190 

Inspection  laws  limited 196 

no  State  shall  levy  tonnage  tax 201 

keep  troops  or  ships   in  time  of  peace    201 

enter  into  compacts  with  other  States  or  foreign  powers. .  201 

engage  in  war  unless  invaded,  etc 201 

Prohibitory  Laws  of  States  not  affected  by  U.  S.  license  tax...  32 

Promissory  Note,  obligation  of,  impaired  by  tax  laws 158 

law  forbidding  transfer,   impairs  contract    177 

Property,  no  person  to  be  deprived  of    but  by  due  process  of 

law 299 

States  not  to  so  deprive   330 

Property  of  United  States,  Congress  may  dispose  of,  etc 279 

and  make  regulations  as  to   279 

Prosecutions,  to  be  by  indictment,  when 299 

right  to  speedy  public  trial 310^ 

by  jury  of  district 31o' 

to  have  and  confront  witnesses 310 

informed  of  accusation , 310 

to  have  counsel    310 

Protection  of  the  laws.  States  not  to  deny  equal    330 

Provisional  Courts,  President  may  establish,  when 210 

Provisional  government.  President  may  establish,  when 210 

Public  Buildings,  power  of  Congress  over 124,  126 

Public  Debts  of  Confederation  not  binding  on  Union 283 

Public  (Grounds  and  Streets,  States  may  regulate  use  of  ......  350 

Public  Lands,  power  of  Congress  to  dispose  of 269 

may  sell  or  lease   278 

Public  Ministers,  President  to  receive 220 

Public  Use.      (See,  Eminent  Domain.) 

private  property  not  to  be  taken  for,  without  compensation .  299 

decisions   as   to    299,  306,  308,  374 

Punishments,  cruel  and  unusual,  not  to  be  inflicted   346 

for  impeachment 14 

impeachment  no  bar  for  other 15 


Quarantine  Laws  of  States,  when  valid 80 

Congress  may  enact   80 

as  to   cattle   diseased    80 

•Quartering  Soldiers  prohibited,  in  houses  in  times  of  peace 296 


41C)  INDEX. 


R. 

Page. 

Race,  right  to  vote  not  to  be  denied  on  account  of 383 

Ratification  of  Constitution,  by  States 291 

dates  of,  by  several  States.      (See,  Chronology.)    380 

dates  of,  of  amendments,  by  States.      (See,  Chronology.)..  386 

Ratio  of  Representation,  according  to  population   9 

to  be  reduced,  when  right  to  vote  abridged 331 

Re-assessment    of    Taxes.      (See,    Taxation.) 

when    "due    process   of   law"    380 

Retellion,  disabilities  for  engaging  in    331 

debts  incurred  to  suppress,  not  to  be  questioned 332 

habeas  corpus  may  be  suspended  in  case  of,  when 133 

States  to   be  protected   from    279 

Records,  Public,  full   faith   and  credit  to  be  given  to,   of  each 

State  in  other  States    243 

Redemption   from   Mortgages,    State   can    not   give,    as   to    past 

contracts    159 

Regulations  of  commerce,  foreign  and  interstate 37 

no  preference  to  ports,  by    142 

Release   of   railroad    from    condition   of   State   subscription    not 

void    as    impairment    of    contract    177 

Religion,  Congress  not  to  establish    ^ 292 

nor  prohibit  free  exercise  of    292 

State  establishment  not  affected  by    293 

belief  in,  does  not  shield  from  crime   295 

maintenance  of  hospital   not  establishment   of    295 

Religious  Test,  none  required,  for  office    283 

Remedies,  statutes  affecting,  when  not  impairment  of  contract  171 

when    an    impairment 172 

Repeal  of  Statutes,  when  do  not  Impair  conti-acts    190 

Reprecentatives,  Congress  to  consist  of  House  of,  etc 8 

qualifications   of   electors    8 

who   may   be  eligible   as    9 

how  apportioned    9 

disability  from   holding  other  office    21 

(See,  House  of  Representatives.) 

Representation,  basis  of,  among  the  States 9 

when    to   be   reduced    in    a    State    331 

Reprisal,  Congress  may  grant  letters  of 116 

Rights,  enumeration   of,   not  to  disparage  others    317 

bill   of,  first   10   amendments    291 

of  suffrage,  fifteenth  amendment  as  to    383 

decisions  thereunder 383 

Right  of  Wa-y,  Congress  may  grant,  to  railway,  telegraph  and 

telephone   lines  through   Indian   country    97 

Riparian  Rights,  subject  to  navigation  and  control  of  same  by 

Congress    378 

Rivers,  Navigable,  power  of  Congress  over   91 

States  may  improve  and  charge  tolls,  when 91 

States  may  authorize  dams  upon,  when 91 


INDEX.  417 

Page. 

Running  of  Trains  on  Sunday,  States  may  regulate 7a 

and  speed  of,  in  cities "^4 

Republican  Form  of  Oovernment  guarantied  to  States 279 

Reserved  Rights  of  States   are  those  not  delgeated    317,  318 

Resignation  of  President,  Congress  may  provide  in  case  of 212 

Revenues,  pledge  of  certain,   for  creditors,   a  contract 181 

Revenue  Bills,  to  originate  in  lower  House 21 


Salaries  of  Federal  officers  not  taxable  by  States    29 

of  State  officers,  not  taxable  by  Congress    31 

Salvation  Army  may  be  forbidden  to  hold  meetings  in  street..  350 

Science  and  Useful  Arts  promoted  by  copyright  and  patents..  107 

Searches   and   Seizures,    right   to   be   secure    against    297 

Seizures,  right  of  people  to  be  secure  against  unreasonable 297 

as  well  in  mails  as  houses 297 

Senate,   how    composed    13 

how  classified 13 

who  el'gible  to 13 

Vice  President  to  preside  over 14 

to  choose  officers 14 

has  power  of  impeachment 14 

court  of  impeachment,  how  constituted   14 

election   of,   in   States    ". .  15 

decisions   as  to    15 

Set-Off 8,  allowance  of,  does  not  impair  contract   184 

Soldiers,  not  to  be  quartered  in  houses 296 

Slaves,  emancipation  of,  by  war  power 115 

Slavery  prohibited  within  U.  S.  and  all  places  in  jurisdiction..  327 

13th  amendment  explained 327 

Slave  Trade,  when  may  be  prohibited 132 

Sleeping  Cars,  tax  on,  by  States,  when  void   58 

Sovereignty,  powers  pertaining  to 131 

Standard  of  Weights  and  Measures,  Congress  shall  fix 101 

States.     (See,  other  titles.) 

admission  of,  into  Union 266 

rights  of,  when  admitted 266 

take  territorial  property   269 

not  to  be  formed  of  States,  not  consenting .  269 

prohibitions  on   144,  201 

consent  to  be  sued  not  a  contract   179,  185 

suits  against,  in  Federal  courts,  when  not  allowed 321 

suits  against  State  officers,  when  against  State 323 

decisions  as  to    324-6 

reserved  rights  of   318 

relation  of,  to  the  Union    280 

full  faith  and  credit  to  public  acts,  etc.,  to  be  given 24:i 

not  to  be  deprived  of  equal  representation  in  Senate 2*^2 

control   of   internal   commerce CO 

27 


418  INDEX. 

rage. 
Btate  Banks.     (See,  Banks.) 

Congress  may  tax  circulation  of 31 

State  Bonds,  contracts,  not  to  be  impaired 153 

State    Office,    State   tribunals   may   decide   who   chosen   to    ....  354 

Stations,  requirement  that  trains  stop  at,  when  void 73 

requirement  to  stop  at,  no  impairment  of  contract,  when..  183 

Statutes,  a  part  of  contract  made,  when  in  force 169 

Statutes  of  Limitations,  when  impair  obligations  of  contract..  193 

must  give  reasonable  time 193 

Stock  of  Corporation,  composed  of  public  securities,  not  taxable, 

by  States 28 

Stock  Killed,  States  may  allow  double  damage  for 346 

Stockholders'  Liability,  repeal   of,   impairs  contract,   when....  155 

Struck  Juries,  held  "due  process  of  law" 366 

Suffrage,  amendments  to  Constitution  do  not  confer 333 

nor   extend    it   to   females    333 

not  to   be   denied   for   color,   etc 383 

amendments  do  not  confer  right  of 333 

Sunday,   States  may  regulate  travel  on    73 

Supreme   Court   of   United  States,   no   jurisdiction   of   political 

questions 223 

may  prescribe  procedure,  when    223 

must    keep   within   jurisdiction    224 

which  extends  to  law  and  equity   224 

and  Congress  can  not  enlarge 224 

nor    States    restrict    224 

Congress  may  extend  appellate  jurisdiction    225 

may   protect   itself  and   judges    225 

President  bound  to  protect 225 

can  try  only  actual  controversy    , 225 

original  jurisdiction,  to  what  extends '226 

to  ambassadors  or  public  ministers 226 

to  cases  where   State  a  party    226 

to  suits  between  States  to  settle  boundaries   231 

appellate  jurisdiction  over  United  States  courts 231 

same  over  Circuit  Court  of  Appeals 233 

same  over  State  Courts    233 

in  what  cases  conferred 234 

leading  points  as  to    235-241 

Supreme  Law  of  Land,  Constitution,  laws  and  treaties  are 283. 


T. 

Taxation.     (See,  Taxes.)  j 

where  personalty  of  non-residents  subject  to 879 

when,  "due  process  of  law" 379 

evasion  of  State,  not  protected  in  equity 380 

State  may  create  or  change,  taxing  district 357 

power  of,   never  presumed  to   be   relinquished 189 

nor  relinquishment  implied  from  license   190 


itn^dex.  419 

Page. 
Taxation— Continued. 

exemption  from,   when  a  contract    (See,   Exemption) 148,  151 

156,  178 

of  commercial   agencies,  when  void    44 

of  passengers  or  "l;ead  money"  void 40 

by  States,  of  corporate  franchises 51 

of  gross  receipts,  etc. 51 

>of  interstate  commerce,  when  unconstitutional 46 

rate  may  be  raised,  without  impairing  contract,  when....  76 
of  corporations  engaged  in  Interstate  commerce,  by  States ..  51-55 

'prop(irtionate  valuation  of  same 52 

property  sent  from  one  state  to  another  taxable 64 

Taxes,  direct,  how  laid  and  apportioned    9,  140,  331 

not  permitted  on  exports  from   States 141 

Congress  has  power  to  lay 24 

internal  revenue,  officers  may  distrain  for   39 

on    distiller's    out-put,    valid 30 

■^      by    States,   of   foreign-held    bonds   of   corporate   franchises, 

etc. 51 

gross  receipts  of  corporations    51 

interstate    commerce    46 

rate  of,  when  may  be  raised    76 

exemption  from     ( See,  Exemption.)    156 

States   may   tax  property   of   railroads   but   not   Interstate 

operations 30 

States  may  tax  Railroads  and  franchises  granted  by  U.   S. 

unless  forbidden    30 

when  such  tax  repugnant    32 

Tax  Certificatea  not  Impaired  by  requirement  that  occupant  have 

notice    : 181 

,  Temporary  Appointments,  when  President  may  make 219 

Tender  in  Payment  of  Debts.     (See,  Legal  Tender.) 

Testimony  of  two  witnesses  to  convict  of  treason 241 

Tie  Vote,  Vice-President  then  to  vote  In  Senate. 14 

Titles  of  Nobility  forbidden  by  Congress  and  States 144 

Telegrams,   States  may   require  diligent  delivery    352 

can  not  tax,  sent  out  of  State 37,  61 

nor  prescribe  distance  of  delivery 51 

Telegraph  Companies,  Instrumentalities  of  commerce 60 

States  can  not  exclude    60 

tax  on  Interstate  messages,  void   61 

on  receipts,  when  void    61 

license  taxes,   when   void    62 

may  be  taxed  on  lines  in  State   62,  64 

on  poles    62 

on   proportional   basis 63 

States  may  require  diligence  in  delivery 80 

tax,  on  business  done  in  State   63 

Congress  may  grant  right  of  way  to,  through  Indian  coun- 
try       97 

Telephone  Lines,  Congress  may  grant  right  of  way  for,  through 

Indian  country    97 


/ 


4:20  IN^DEX. 


Page. 

Territories,  Congress  may  make  rules  and  regulations  as  to 269 

Government  may  acquire,  by  conquest  or  treaty 2G9 

power  of  Congress  plenary   270 

subject   to   fundamental    limitations 271 

personal  and  civil  righ-^s  secured  to  citizens  of,  as  to  other 

citizens    271 

the  Dred  Scott  decision  as  to   272 

power  of  Congress  ove",  is  in  trust  for  whole  people 273 

courts  in,  creatures  of  Congress   274 

where  offenses  committed  in,  triable    274 

may  levy  taxes  in    274 

right  of  people  in,  to  trial  by  jury   276 

provisional   government   in,   when   proper 278 

power  of  Congress  to  dispose  of  lands    278 

Territorial  Courts  not  "courts  of  United  States" 241 

Toll  Bridges,  when  charter  of,  a  contract 156 

other,   near   bridge,   an   impairment,    when 156 

may  be  condemned  to  public  use   177 

Trade-Marks,  power  of  Congress  as  to lOf) 

act  of  Congress  as  to,   void    109 

Treason  defined  by  Constitution    , 241 

Congress    may    declare    punishment    241 

but  power   limited 241 

who   may   be  guilty   of    241 

aliens,  when   may  be  guilty  of    242 

Treaties,  President  to  make,  with  consent  of  Senate 217 

effect  of 218 

courts  must  give  effect  to   c 284 

are  supreme  law  of  land    .    283,  284 

paramount   over   State   Constitutions    287 

States  forbidden  to  enter   into    144 

British  property  protected  by,  of  1783 289 

power  to  make,  extends  to  protection  of  property  of  aliens  289 

State  laws  hostile  to,  void   290 

with  Indians  binding  on  States 290 

Trial  ty  Jury,  crimes  except  impeachment  triable  by 310 

not  entitled  to,  at  sea 311 

In  cases  at  law,  secured   312 

suits  of  common  law  include  all  proceedings   312,  315 

fact  tried  by,  how  re-examined   312 

how.    In    Supreme    court    315 

not   applicable   in   army   or  navy 301 

guaranty  of,  when  applies  in  war 301 

court   may  express   opinion   on   facts   in 301 

^  -^    dear    to    American    people    302 

Tribunals,  Inferior  to  Supreme  court,  Congress  may  establish..  110 

Troops  or  Ships  of  War,  States  can  not  keep,  in  time  of  peace. .  201 

Trusts,  act  of  1890,  does  not  apply  to  Kansas  City  Live  Stock 

Ass'n      83 

same,  held  valid   85 

Two-thirds   Vote  necessary   to   Impeachment    14 

or  pass  bill  over  veto  23 


INDEX.  421 

Page. 
Two-thirds  Vote— Continued. 

of  Senate  to  ratify  treaty  217 

to   elect   Vice   President 208 

to  expel  a  member   17 

of  both  houses  to  propose  amendments   282 

to  remove  disabilities    331 

^wo-thirds  of  States,  vote  of  members  from,  to  choose  President,  ^ 

when    208 

to  call  convention  for  proposing  amendments  to  Constitu- 
tion      282 


U. 

Union,  to  establish  a  more  perfect   1 

nature  of,  under  Constitution 6 

constituting  one  nation 4 

new  States  may  be  admitted  into   266 

President  to  inform  Congress  of  state  of   220 

each  State  guarantied  a  republican  form  of  government..  279 

Unreasonable  Bates,  States  can  not  limit,  for  common  carriers. 

etc 338-353 

Unreasonable  Searches  and  Seizures  forbidden 297 


V. 

Vacancies,  President  when  to  fill    219 

Validity  of  Public  Debt,  never  to  be  questioned   332 

Valuation  Laws,  by  State,  when  impair  obligation  on  contract. .  154 

Vessels  from  one  port  to  another  in  U.  S.  not  to  pay  duties,  etc.  142 

Veto,  power  of  President  as  to   22 

Vice  Consuls,  President  may  appoint    219 

Vice  President  to  be  President  of  Senate 14 

not  to  vote  except  in  case  of  tie   14 

to  be  chosen  for  four  years 206 

how  elected  by  electors   207 

when  executive  duties  devolve  on   212 

impeachment  for,  for  high  crimes  and  misdemeanors 221 

Virginia  Coupon  Cases,  statutes  and  decisions  as  to 160 


War.     (See,  War  Power.) 

treason  against  TJ.  S.  consists  of  levying,  etc 241 

War  Power,  Congress  may  declare  war   113 

grant  letters  of  marque    113 

and  make  rules  concerning  captures 113,  116 

defined     113 

may  exercise,  in  domestic  insurrection   113 


422  INDEX. 

Page. 
War   Power— Continued. 

can  not  disturb  safeguards  of  liberty,  when   113 

powers  as  to   alien   property 114 

may   regulate   commex'cial   intercourse   with   enemy 114,  115 

and  President  may   114 

may  establish  military  courts    115 

emancipate    slaves    115 

acquire  territory  by  conquest 115 

transport  ti'oops  through   States    115 

confiscate,  in  civil  war    115 

provide   provisional    governments 115 

exercise  powers  of  belligerent  in  civil   war 116 

Warehouses,  States  may  regulate  charges  for 350 

Warrants,  for  search  to  issue  only  on  oath,  etc 297 

Warrants  on  Treasury,  agreement  by  State  to  take,  in  payment 

of  dues,   a  contract    173 

Warranty  of  negro,  as  slave  for  life  not  broken  by  emancipation  828 

Weights  and  Measures,  Congress  may  fix  standard  for 101 

Waterways.     (See,  Rivers.) 

States  may   improve  and   charge  tolls  for    351,  359 

Water  Rents,   States  may  make,   charge  on  lands    348 

Wharfage,  charges  for,  not  interference  with  commerce   71 

municipalities  may  charge  for   96 

Witness  Against  Self,  one  not  compelled  to  be   299,  303 

extent  of  privilege    304 

Witnesses,  accused,  may  confront   310 

and   have   compulsory   process   for    310 

two,  to  overt  act  to  convict  of  treason 241 


TTNIVERSITT 


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